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CONSTITUTIONAL LAW 



FOR THE USE OF THE 



LAW CLASS 



UNIVERSITY OF VIRGINIA, 



X^ 



BY HENRY ST. GEORGE\^^l.t ^ />// 

PROFESSOR. '*'' 4»'* / 



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RICHMOND: 

PRINTED BY SHEPHERD AND COLIN. 



1843. 




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/ 

ON THE 



CONSTITUTION OF THE UNITED STATES. 



LECTURE I. 

Having presented to you, young gentlemen, in some 
former lectures, my views of the character and principles 
of the several forms of government, and particularly of the 
representative and confederate, we will now proceed to a 
more accurate examination of our own political system, 
which has been professedly constructed upon the com- 
bined principles of popular representation and an union of 
sovereign and independent states. I confidently believe 
that these enquiries will result in the conviction that whilst 
we have adopted a system without a prototype, we shall, 
nevertheless, find it eminently calculated to protect us 
from foreign aggression, and to secure the rights of life, 
liberty and property to every citizen of those free and hap- 
py republics. 

Before we proceed however with our task, it may not be 
improper to recall to your recollections certain points of 
our national history with which you are doubtless familiar, 
but which bear too materially upon our subject to be passed 
at least without a reference. 

The people of the United States, as you all are aware, 
are composed of the descendants of those subjects of the 
British crown, who, from various motives, left within the 
two last centuries their native isles and settled themselves 
upon this wild and dejert continent. It is a principle of 
British law that if an uninhabited country is discovered 
and planted by British subjects, the English laws are im- 
mediately in force there; for the law is the birthright of 



\ 



LECTURES ON 

every subject : so that wherever they go they carry their 
laws with them, arTQ the new fcund country is governed by 
them. (a) ThepropositionVio^ver must be considered as 
limited by their applicability and their consistency with the 
local and political circumstances in which the colonists are 
placed; and, moreover, by those changes which, in the 
lapse of time may be made by that power which exercises 
the legislative authority over them. 

Such seems, indeed, to be the natural course of things, 
though the notion has been derided by some of our most 
distinguished men. (6) It could not well have been other- 
wise. If we imagine a body of emigrants settling in an 
uninhabited country, we must suppose them to be under 
the government of some laws. Bodies of men cannot sub- 
sist without them. And if they must have some, what so 
natural as their recognition, even without adoption, of that 
system under which they were born, and to which they have 
been accustomed ? Under such circumstances, the laws of 
the fatherland, so far as they might be applicable, would be 
looked to as the rule of civil conduct, commanding what 
is right and prohibiting what is wrong. This would be 
the natural course of things, if the bond which united the 
emigrants to the land of their birth was severed forever. 
It would have been the case with our forefathers, if, when 
they left the British shores, they could have fled beyond 
the reach of the keen eye and powerful arm of the mo- 
narch who claimed them as his subjects. But this was not 
their case. They might have exclaimed in the language 
of the Psalmist, " If I take the wings of the morning and 
dwell in the uttermost parts of the sea, even there shall thy 
hand lead me and thy right hand shall hold me." 

This indeed was eminently the case with the British sub- 
ject. Leashed to the footstool of the British crown, no 
time nor distance could dissolve the tie. The law of alle- 
giance bound him wherever he might go, and " he dragged 
at each remove a lengthening chain." It was the principle 
of the law of that land that neither time nor distance 
could impair its obligation. Allegiance was a quality or 
duty, and as is said in the quaint language of a learned ap- 

(a) 1 Black. Com. 107. 
(i)4 JefF. Corr. 178. 



CONSTITUTIONAL LAW. 5 

prentice in Plovvden, it was held to be ridiculous to at- 
tempt to force the predicament of quality into the predica- 
tnent of ubi. Wherever, therefore, the British power 
reached, the British emigrant would be governed by its 
laws; and wherever he felt its restraints, or was sensible 
of its trammels, he would naturally claim as a set-off to 
its burdens, a full title to its privileges and protection. (c) 
Thus it is that in the declaration of rights drawn up by the 
continental congress of 1774, we find it declared, "that 
our ancestors, who first settled these colonies, were, at the 
time of their emigration from the mother country, entitled 
to all the rights, liberties and immunities of free and natu- 
ral born subjects within the realm of England." 

But the common law thus brought by the colonists was, 
it must be observed, very different at the periods of the 
different settlements. The common law as existing at the 
settlement of Virginia was very much modified before the 
settlement of Georgia in the reign of George the second ; 
so that there never has been in the various states the same 
system of common law in all its ramifications, though its 
general character throughout the whole was very much 
the same, except so far as it had been altered by statutes 
enacted by the legislatures of the respective colonies. For 
very early after the respective settlements, provincial as- 
semblies were established, composed of the representatives 
of the freeholders and planters, with whom were associated 
the governor and council, the last of whom composed an 
upper house, while the governor was invested with the 
power of a negative, and of proroguing and dissolving 
them. Thus constituted they soon acquired a code of 
their own, and introduced very large and important varia- 
tions from the common law in all its branches; so that at 
the date of the revolution, and still more at the date of the 
present constitution of the United States, the systems of 
jurisprudence of the several states were so dissimilar that 
,it would have been impossible, even if had been desired, to 
have adopted the common law as the general law of the 
United States as such. 

The power of legislation thus exercised by the colonial 
legislatures, with the restrictions necessarily arising from 

(c) See Cond. Rep. 204, 211, 212; 10 East. 282, 288, 289. 
1* 



6 LECTURES ON 

their dependence on Great Britain was not without con- 
trol : for in all the colonies, except Maryland, Connecticut 
and Rhode Island, the king possessed the power of abro- 
gating the laws, and they were not final in their authority 
until they had passed under his review. (1 Story 158.) The 
colonies indeed were looked upon as dependencies of the 
British crown and owing allegiance thereto ; the king being 
their supreme and sovereign lord. (1 Vez. 444; Vaugh. 
R. 300, 400 ; Shower's Pari. Ga. 30, &c.) From him the 
colonial assemblies were considered as deriving their ener- 
gies, and it was in his power to assent or dissent to all their 
proceedings. In regard to the authority of parliament, the 
government of Great Britain maintained the right of that 
body to bind the colonies in all cases whatsoever ; though 
it was admitted that they were bound by no act of parlia- 
ment in which they were not expressly named. In America 
different opinions were entertained on the subject at dif- 
ferent times and in different colonies. The power of taxa- 
tion however was resisted from a very early period; (1 
Story 172, 3, 4,) and the allegiance to the crown on the 
one hand, and the right of exemption from taxes unless im- 
posed by themselves on the other, are equally asserted in a 
declaration of the colonies assembled at New York in Oc- 
tober 1765. (1 Story 175.) And although in the same 
paper, the power of parliament to bind the colonies by 
legislation was admitted, yet upon the same principles on 
v/hich the right of taxation was denied, the people of the co- 
lonies at length settled down upon the broad principle, that 
parliament had no power to bind them by its laws, except by 
such as might be enacted for the regulation of commerce 
and of the general concerns of the empire. While alle- 
giance to the crown was thus admitted, the authority of 
parliament to legislate in matters of taxation and internal 
policy was denied; and even the declaration of indepen- 
dence distinctly evinces by its silence as to parliament, 
that the authority to which they traced their wrongs, and 
whose action upon them was recognized was the king 
alone, until the power of taxation was asserted by parlia- 
ment. This assertion and the wrongs of the crown at 
length brought revolution, and as soon as its first steps 
were taken, and even before a final separation was in con- 
templation, a close union and co-operation of all the co- 



CONSTITUTIONAL LAW. 7 

lonies were perceived to be essential to the successful vin- 
dication of their rights and liberties as British subjects. 
A congress of delegates from the several colonies accord- 
ingly assembled first in 1774, and afterwards in 1775, and 
by them the necessary measures were adopted for the ge- 
neral defence. We shall hereafter have occasion to con- 
sider whether this body was to be looked upon as repre- 
senting one people or thirteen distinct communities. But 
in this hasty sketch of the progress of the states to their 
present condition, it seems only necessary to say, that the 
congress of 1774 considered itself as invested with power 
to concert measures for redress of grievances, and that 
those of 1775 and 1776 were clothed with yet more ample 
powers ; their commissions being sufficiently broad to em- 
brace the right to pass measures of a national character 
and obligation. Anticipating the eager spirit of the peo- 
ple in resistance of British oppression and claims of do- 
minion, they took measures of national defence; prohibited 
intercourse and trade with Great Britain, and raised an 
army and navy and authorized hostilities. They also raised 
and borrowed money ; emitted bills of credit ; established 
a post office, and authorized captures and condemnations 
of prizes in prize courts, with a reserve of appellate ju- 
risdiction to themselves. At length, by the same body, 
the United States were declared independent in the most 
gloomy moments of the contest, and they continued to ex- 
ercise the powers of a general government under a loose 
and irregular authority, until the adoption of the articles 
of confederation by some of the states in 1778. Those 
articles gave indeed a more firm and decided character to 
the government, and sustained by patriotism and the ar- 
dour of the conflict, bore us at length safely through our 
arduous struggle with one of the most powerful nations of 
the globe. On the termination of the war, the pressure of 
which, like the pressure of the superincumbent atmosphere, 
gave a principle of solidity to our institutions which did 
not properly belong to them, every thing became relaxed. 
The bands which united us seemed loosened, and all per- 
ceived how important it was they should be tightened. 
Years however passed away before the submission of the 
plan of a new constitution to the people, and the adoption 
of it by them. No sooner did it go into operation than it 



8 LECTURES ON 

placed the states of the Union upon an elevation which 
even the most sanguine could scarcely have anticipated. 
We may reiterate the exclamation which Mr. Blackstone 
has borrowed from father Paul, and terminate our grateful 
acknowledgments to the giver of all good for our blessed 
constitution, by the fervent ejaculation " Esto petyefua." 

After this rapid sketch let us now proceed to look more 
closely into the nature and character, not only of our in- 
stitutions, but of the relation which the several states have 
borne to each other, whether considered as colonies, or as 
brethren fighting shoulder to shoulder under the same ir- 
regular government, or as members of a great and organized 
confederacy, or finally as constituting the great and happy 
Union under which we live, protected against enemies 
abroad, and carefully secured from the danger of tyranny 
at home. 

In the history of the two great parties which have di- 
vided the people of the United States ever since the adop- 
tion of the present constitution, a constant struggle is ob- 
servable in relation to the character of the government. 
The federal party(c?) (so called by a strange perversion 

(d) Judge Story tells us : § 286. In this state of things the em- 
barrassments of the country in its financial concerns, the general 
pecuniary distress among the people from the exhausting opera- 
tions of the war, the total prostration of commerce, and the lan- 
guishing unthriftiness of agriculture, gave new impulses to the 
already marked political divisions in the legislative councils. Ef- 
forts were made, on one side, to relieve the pressure of the public 
calamities by a resort to the issue of paper money, to tender laws, 
and instalment and other laws, having for their object the post- 
ponement of the payment of private debts, and a diminution of 
the public taxes. On the other side, public as well as private cre- 
ditors became alarmed from the increased dangers to property, and 
the increased facility of perpetrating frauds to the destruction of all 
private faith and credit. And they insisted strenuously upon the 
establishment of a government, and system of laws, which should 
preserve the public faith, and redeem the country from that ruin, 
which always follows upon the violation of the principles of jus- 
tice, and the moral obligation of contracts. "At length," we are 
told,* " two great parties were formed in every state, which were 
distinctly marked, and which pursued distinct objects with syste- 
matic arrangement. The one struggled with unabated zeal for the 
exact observance of public and private engagements. The distresses 

* 5 Marshall's Lifd of Washington, 83. 



CONSTITUTIONAL LAW. 9 

of the use of the terms) have always been inclined to re- 
present the United States as constituting one people, instead 
of a confederacy of states ; while their opponents (for- 
merly called anti-federalists, but more recently known as 
the democratic or republican party) have ever strenuously 
contended that the constitution was a compact, or the re- 
sult of a compact between the states; who retain their so- 
vereignty, and all the rights of sovereignty, which they 
have not expressly transferred to the federal government. 
Thus we find Mr. Webster, the great champion of the fe- 
deral party, pronouncing, (and judge Story once, but no 
longer, supposed to be of the states right party, quotes him 
with approbation) that " the doctrine that the states are 
parties to the constitution is refuted by the constitution it- 
self in its very front. It declares that it is ordained and es- 
tablished by the people of the United States. So far from 
saying that it is established by the governments of the se- 
veral states, it does not even say that it is established by 
the people of the several states. But it pronounces that it 
is established by the people of the United States in the 
AGGREGATE ! ! Doubtless the people of the several states 
taken collectively constitute the people of the United 

of individuals were, they thought, to be alleviated by industry and 
frugality, and not by a relaxation of the laws, or by a sacrifice of 
the rights of others. They were consequently uniform friends of 
a regular administration of justice, and of a vigorous course of 
taxation, which would enable the state to comply with its engage- 
ments. By a natural association of ideas, they were also, with 
very few exceptions, in favour of enlarging the powers of the fe- 
deral government, and of enabling it to protect the dignity and 
character of the nation abroad, and its interests at home. The 
other party marked out for itself a more indulgent course. They 
were uniformly in favour of relaxing the administration of justice, 
of affording facilities for the payment of debts, or of suspend- 
ing their collection, and of remitting taxes. The same course of 
opinion led them to resist every attempt to transfer from their own 
hands into those of congress, powers, which were by others deemed 
essential to the preservation of the Union. In many of the states 
the party last mentioned constituted a decided majority of the peo- 
ple ; and in all of them it was very powerful." Such is the lan- 
guage of one of our best historians in treating of the period im- 
mediately preceding the formation of the constitution of the United 
States." 

* See also 5 Marshall's Life of Washington, 130, 131 



10 



LECTURES ON 



States. But it is in this their collective capacity, it is, as 
all the people of the United States that they establish the 
constitution." (Webster's Speeches, pa. 430, cited 1 Sto- 
ry 331, 2.) Similar opinions are delivered in Martin v. 
Hunter, 1 Wheat. 324. 

The foregoing passage is cited here, not for the purpose 
of exposing its disingenuous sophisms, but merely to pre- 
sent the views of one of the great parties of the country 
in relation to our federal constitution. It is their favourite 
position " that the constitution of the United States was 
ordained and adopted, not hy the states in their sovereign 
capacities, but emphatically, as the preamble declares by 
the people of the United States, and it is this position 
which it behoves every lover of truth and of the rights of the 
states most vigorously to assail. Its advocates indeed have 
maintained it with equal earnestness and ability, but having 
been foiled on some eminent occasions, and having fallen 
from power in no small degree from their strenuous main- 
tenance of this political heresy, one of the most distin- 
guished among them has compiled a laborious work with 
a view to sustain it. In doing this, judge Story has at- 
tempted to fortify himself, by shewing that the people of 
the United States were ahoays one people : that the colo- 
nies themselves, when subjects of Great Britain, were not 
distinct and separate from each other, but were one people : 
that during the revolutionary struggle they were still one 
people even anterior to the confederation : that the decla- 
ration of independence treated them as one people, and 
that this oneness or unity particularly distinguished them 
in " ordaining and establishing the constitution of the 
United States." Such is the general tenor, as it appears 
to me, of judge Story's doctrine, but as I shall, in proceed- 
ing to examine it, quote his very language, I shall have 
done him no injustice, if what I have just said does not re- 
present him fairly. Let us proceed then to state and ex- 
amine his several positions. 

We will begin with the colonies. In page 164, judge 
Story remarks that " though the colonies were indepen- 
dent of each other in respect to their domestic concerns, 
they were not wholly alien to each other. On the contra- 
ry they were fellow subjects, and for many purposes one 
people. Every colonist had a right to inhabit if he pleased 



CONSTITUTIONAL LAW. 11 

in any other,(e) and, as a British subject, was capable of 
inheriting lands by descent in every other colony." And 
he proceeds to cite Ch. Jus. Jay to the same point " that 
they were in a variety of respects one people." 

Let us then enquire whether the colonies before the re- 
volution toere justly to be regarded in ani/ respect or for 
cmy purpose one people. I propose to examine this ques- 
tion shortly, according to the views of the statesmen of the 
times, and the admissions of judge Story himself; accord- 
ing to the nature of the several political societies ; accord- 
ing to historical facts, and upon principle.' 

First, it is clear, that the colonies were looked upon not 
as constituting part even of the body politic of the British 
government, but as subject to it; " not ns part of the mo- 
ther country, but as distinct, though dependent domi- 
nions." Such is the language of Mr. Blackstone when 
speaking of these very colonies. (Vol. 1, 107.) So even 
the kingdom of Scotland, after the union of the two crowns 
on the accession of James I. continued an entire, separate 
and distinct kingdom for above a century ; and so when 
judge Blackstone wrote, Ireland was still a distinct, though 
a dependent and subordinate kingdom (p. 99). So also of 
Hanover, though it has the same king that sits on the Bri- 
tish throne, it is a distinct, independent and unconnected 
kingdom, (p. 110.)(/) 

Admitting then that the colonies, though the subjects of 
the crown, made no part of the mother country, but were 
DISTINCT, though dependent dominions, they were a for- 
tiori DISTINCT from each other : For if their being sub- 
ject to the authority of the crown of England did not 
make them to any intent one people with England, still 
less could they'be one people with other states, that neither 
were subject to them nor had authority over them. 

(e) " It never loas considered,'" says judge Iredell, " that before 
the actual signature of the articles of confederation a citizen of 
one state was to any one purpose a citizen of another. He was, as to 
all substantial purposes, as a foreigner to their forensic jurispru- 
dence. If rigorous law had been enforced, perhaps, he might have 
been deemed an alien without an express provision of the state to 
save him." Hence the provisions in the articles of confederation 
and in the constitution United States. 

(/) See Vattel, Burlamaque and Hutchinson, quoted Tucker's 
Black, app. 64, 65. 



%. 



12 LECTURES ON 

That the colonies were held to be only subjects, and not 
as forming part of the British body politic, is fairly to be 
inferred from the speeches of lord Chatham and Mr. Burke 
in the passages quoted by Mr. Story himself (p. 153, 4) ; 
for they are distinctly considered as the subjects of the 
crown, and their rights and privileges are placed upon the 
footing of being British subjects, who, though residing in 
a distinct dominion from England, were entitled to the 
common privileges of every subject of the crown. The 
colonies themselves they considered distinct from the 
realm of England : and, moreover, " the authority over 
them was declared by lord Chatham to be sovereign and su- 
preme in every circumstance of government and legisla- 
tion. "(^) The statute 6 Geo. III. also declares the colo- 
nies subordinate to and dependent upon the imperial crown 
and parliament : and so they were not on a footing with 
British people, but were subject to them, and were not 
therefore one with them. And if not one with the77i, in what 
manner could they be one loith each other. 

Judge Story indeed himself admits that "for all pur- 
poses of domestic and internal regulation the colonial le- 
gislatures deemed themselves possessed of entire authority 
exclusive of each other," (p. 152) : and that with the re- 
strictions necessarily arising from their dependency on 
Great Britain, " they were sovereign within the limits of 
their respective territories." (p. 158.) And again he says, 
" they considered themselves not as parcel of the realm of 
Great Britain, but as dependencies of the British crotvn, 
and owing allegiance thereto, the Icing being their supreme 
and sovereign lord." If then they were not 07ie with the 
recdm, it is difficult indeed to imagine how they could as 
distinct dependencies be one with each other. 

Again, in page 163, he says more distinctly, " though 
the colonies had a common origin, and owed a common 
allegiance, and the inhabitants of each were British sub- 
jects, they had no direct political connexion with each 
other. Each was independent of all the others ; each in 
a limited sense was sovereign within its own territory. 
There was neither alliance nor confederacy between them. 

{g) This doctrine, however extravagant, shews that Chatham 
did not look vipon the colonies as parts of the realm. 



CONSTITUTIONAL LAW. 13 

The assembly of one province could not make laws for 
another, nor confer privileges which were to be enjoyed or 
exercised in another, farther than they could be in any in- 
dependent foreign state. They were known only as de- 
pendencies." Now all this is orthodox and true, and as 
such we heartily adopt it. It is not for me indeed to at- 
tempt to reconcile it with the position already cited, that 
they were to many purposes one people; (page 164,) and 
still less with the reasoning attempted, in page 196, to be 
founded on these narrow premises. We shall have occa- 
sion however to view this matter more closely by and by. 
At present we think judge Story's admissions sufficiently 
establish, that if the colonies were " not sovereign commu- 
nities in the most large and general sense," it was because 
they were subjects of the British crown, and not because 
they were subjects of or connected with each other. The 
matter would have been more doubtful had they formed 
parts of the realm as York and Middlesex do ; subject to 
the same laws, constituting portions of one body politic, 
and having the commune vinculum of the same legislative 
authority. Then indeed there might have been some pre- 
text for considering the fragments broken off from a com- 
mon mass as being homogeneous and identical, but it will 
require more than the ipse dixit even of judge Story to 
establish a unity between peoples(A) with different laws, 
different systems of government, different organizations in 
all their parts, different revenues, different taxation, differ- 
ent deliberative assemblies in relation to their concerns as 
"people," and different local executives and judiciaries 
for the conduct of their affairs and the administration of 
their varied jurisprudence. This leads me to observe, 

Secondly, That the states were not one but distinct from 
the nature of their several political societies. This is ap- 
parent, if we look at their origin, their settlements, and 
their forms of civil polity. They were settled at very different 
times, Virginia 150 years before Georgia, and the rest at 
intermediate periods. They came over to these desert 
countries under different circumstances. Some of the 
governments were provincial, some proprietary, and some 

(/t) I use the plural as Detoqueville very happily does. 
2 



14 LECTURES ON 

were chartered. Nay, more — some were conquered, as 
were New York and Jersey, and by the principles of the 
common law, the laws of the conquered lands prevailed till 
changed by the stern fiat of the conquerors. These va- 
rious peoples were, therefore, essentially distinct and sepa- 
rate, and utterly incapable of amalgamation or oneness : and 
we must remember that the question is not whether they 
were sovereign in respect of foreign nations, but whether 
they were one in regard to each other. 

But the several colonies were not only different in origin 
and in organization, but they were perfectly independent 
in their jurisdiction. No one colony had any pretence of 
authority or power within the bounds of another. Even 
under the threatenings of a savage foe one could not call 
out the militia of another. Hence the early confedera- 
tions among some of the northern colonies for mutual de- 
fence, and hence the abortive attempt shortly anterior to 
the war of 1756 to establish a more comprehensive union 
of the colonies.(^) These associations and attempts at as- 
sociation successfully repel every notion of oneness be- 
tween them. If they were one already, where was the ne- 
cessity of any farther measure to bind them together? If 
they were one, why were not all compelled to join in those 
associations? Why, in the language of chancellor Kent, 
(vol. 1, pa. 205,) were they destined to remain longer se- 
parate, and in a considerable degree alien commonwealths, 
jealous of each other's prosperity, and divided by policy, 
institutions, prejudice and manners? Why was the force 
of these considerations so strong, as to have induced Dr. 
Franklin (one of the commissioners to the congress that 
formed the plan of Union in 1754) to have observed that 
a union of the colonies was absolutely impossible, or at 
least without being forced by the most grievous tyranny 
and oppression ? Why did Gov. Pownal concur in the 
same sentiment, declaring, that the colonies had no one 
principle of association among them, and that their man- 
ner of settlement, diversity of charters, conflicting inte- 
rests, and mutual rivalships and jealousies rendered union 
impracticable? (Pownal on the Colonies, 35, 36, 93.) 

(i) 1 Kent 202, 203. 



CONSTITUTIONAL LAW. 15 

The colonies, indeed, in some regards, appear not only 
to have been distinct from each other, but to have exercised 
distinctly independent acts of sovereignty, under the con- 
trol indeed of the king of England, whose subjects they 
were. Thus, anterior to the revolution, many treaties 
were made by the respective colonies with the Indians 
within their boundaries, all of whom were admitted to be 
the rightful occupants of the soil, with a right to use, re- 
tain and reside upon it, exercising authority over it, 
governing themselves by their own laws, and having the 
privilege of selling their lands or not, at their pleasure, 
to the civilized people who discovered the country. (j) 
Accordingly the several colonies, by treaties, anterior 
to the revolution, entered, for themselves and on their 
separate account, into treaties with the Indians in which 
no other colony had any participation or concern. Thus 
it would seem that in all things they acted at plea- 
sure, independently of each other ; no one could interfere 
with another : when they acted in concert it was either by 
compact or by command of a common head, and when 
that head was severed, they were left without any com?nune 
vinculum to hold them together, and each had a separate 
and distinct power to supply the loss by creating an exe- 
cutive of its own, according to its own notions of pro- 
priety and policy. 

If we consider the matter upon principle it is not less 
clear. What is it which constitutes nationality or the oneness 
of people? A nation or people is a political body united 
together by common laws and common institutions. To 
constitute one people, those who compose it must act as 
one people. It is the unity of action which alone makes 
those one, who, without it, would be several. Several in- 
dividuals may unite in a body politic, and by this unity of 
action be held as one man. Without such unity they must 
remain, what they are by nature, several. No union of 
states, indeed, can ever make one people; for while they 
continue states, each acts for itself, and that entire unity 
of action is wanting, which, alone, constitutes oneness. If 
the power of separate action be surrendered, nationality 
indeed is created, but the states are no more. With what 

(j) 8 Wheat. 543. 



16 LECTURES ON 

propriety can it be affirmed that bodies of people are one 
people, when they have separate and distinct governments ; 
of separate and distinct forms ; w^ith distinct and conflict- 
ing systems of jurisprudence; where the judgments of 
one are held foreign to the other (as was the case in the 
colonies) ; when neither can interfere with or control ano- 
ther, and, in short, when each has the power of governing 
itself without being dependent on the will of the other ? 
Judge Story, himself, tells us (195) that if a state has the 
sole power of governing itself, and is not dependent on any 
foreign state, it is called a sovereign state ; from which 
the corollary seems fair, that every state must be held to 
be independent and distinct from every other state by which 
it is not governed. The law-making power seems pecu- 
liarly to give its character in this regard to the society. 
That which makes for itself law, and particularly its fun- 
damental law, is so far sovereign. That power of legisla- 
tion for itself, makes it distinct from others ; for legislation 
is the action of political bodies, and separate legislation is 
separate action, which is inconsistent with the notion of 
unity. (^) Thus it is that two peoples may have the same 
king, and yet be separate people : as in the case of Great 
Britain and Hanover now, and of England and Scotland 
before the union. The union itself proves that they lotrt 
not one before. At this day England and Hanover, with the 
same king, are not involved in the wars of each other. Ire- 
land, too, before the union, was considered as foreign, and 
the judgments of her courts, and those of Jamaica, of Ca- 
nada and of India are looked upon as foreign judgments. 
Even the judgment of the king's bench is a foreign judg- 
ment in Ireland, 2 Str. 1090; 4 Barn. &. Cres. 411 ; and 
the court of king's bench itself affirms the judgment which 
so pronounces it. But if these portions of the empire are 
foreign to England, the thirteen colonies must have been 
foreign to her, and if foreign to her, how much more fo- 
reign to Hindostan, or Antigua, or to one another ? 

There was then nothing of nationality or oneness in the 
people of the colonies. Each colony was a distinct com- 

(li) 1 Tuck. Black, app. 64, 65, citing Hutchinson, Vattel and 
Burlamaque. 



CONSTITUTIONAL LAW. 17 

munity or body politic ; having its own charter, its own 
government, its own laws and institutions, and its own 
right of separate action, under the control indeed of the 
crown, but not of the sister colonies : and hence, I confi- 
dently conclude, that they did not in any sense whatever 
constitute one people. 

Unwilling however to leave this important position upon 
my less forcible arguments, I offer to the student the acute 
remarks of judge Upshur in his able review of a part of 
judge Story's work. The learned and sagacious author 
observes : 

" It appears to be a favourite object with the author to 
impress upon the mind of the reader, at the very commence- 
ment of his work, the idea that the people of the several 
colonies were, as to some objects, which he has not ex- 
plained, and to some extent, which he has not defined, ' one 
people.' This is not only plainly inferable from the gene- 
ral scope of the book, but is expressly asserted in the fol- 
lowing passage : ' But although the colonies were indepen- 
dent of each other in respect to their domestic concerns, 
they were not wholly alien to each other. On the contrary, 
they were fellow subjects, and for many purposes one peo- 
ple. Every colonist had a right to inhabit, if he pleased, 
in any other colony, and as a British subject he was capa- 
ble of inheriting lands by descent in every other colony. 
The commercial intercourse of the colonies too was regu- 
lated by the general laws of the British empire, and could 
not be restrained or obstructed by colonial legislation. The 
remarks of Mr. chief justice Jay are equally just and stri- 
king : ' All the people of this country were then subjects 
of the king of Great Britain, and owed allegiance to him, 
and all the civil authority then existing or exercised here 
flowed from the head of the British empire. They were 
in a strict sense fellow subjects, and in a variety of respects 
one people. When the revolution commenced, the patriots 
did not assert that only the same affinity and social con- 
nexion subsisted between the people of the colonies, which 
subsisted between the people of Gaul, Britain and Spain, 
while Roman provinces, to wit, only that affinity and so- 
cial connexion which results from the mere circumstance 
of being governed by the same prince.' ' 
2* 



18 LECTURES ON 

"In this passage the author takes his ground distinctly 
and boldly. The first idea suggested by the perusal of it 
is, that he discerned very clearly the necessity of establish- 
ing his position, but did not discern quite so clearly by what 
process of reasoning he was to accomplish it. If the pas- 
sage stood alone, it would be fair to suppose that he did 
not design to extend the idea of a unity among the people 
of the colonies beyond the several particulars which he has 
enumerated. Justice to him requires that we should sup- 
pose this ; for, if it had been otherwise, he would scarcely 
have failed to support his opinion by pointing out some one 
of the ' many purposes,' for which the colonies were, in his 
view of them, ' one people.' The same may be said of Mr. 
chief justice Jay. He also has specified several particu- 
lars in which he supposed this unity to exist, and arrives 
at the conclusion, that the people of the several colonies 
were, ' in a variety of respects, one people.' In what re- 
spect they were ' one,' except those which he has enume- 
rated, he does not say, and of course it is fair to presume 
that he meant to rest the justness of his conclusion upon 
them alone. The historical facts stated by both of these 
gentlemen are truly stated ; but it is surprising that it did 
not occur to such cool reasoners, that every one of them is 
the result of the relation between the colonies and the mo- 
ther country, and not the result of the relation hetioeen the 
colonies themselves. Every British subject, whether born 
in England proper or in a colony, has a right to reside any 
where within the British realm ; and this hy the force of 
British laws. Such is the right of every Englishman, 
wherever he may be found. As to the right of the colo- 
nist to inherit lands by descent in any other colony than 
his own, our author himself informs us that it belonged to 
him ' as a British subject.' That right, indeed, is a con- 
sequence of his allegiance. By the policy of the British 
constitution and laws, it is not permitted that the soil of 
her territory should belong to any from whom she cannot 
demand all the duties of allegiance. This allegiance is the 
same in all the colonies as it is in England proper; and, 
wherever it exists, the correspondent right to own and in- 
herit the soil attaches. The right to regulate commercial 
intercourse among her colonies belongs, of course, to the 
parent country, unless she relinquishes it by some act of 



CONSTITUTIONAL LAW. 19 

her own ; and no such act is shewn in the present case. 
On the contrary, although that right was resisted for a time 
by some of the American colonies, it was finally yielded, 
as our author himself informs us, by all those of New 
England, and I am not informed that it was denied by any 
other. Indeed, the supremacy of parliament, in most mat- 
ters of legislation which concerned the colonies, was ge- 
nerally — nay, universally — admitted, up to the very eve of 
the revolution. It is true, the right to tax the colonies 
was denied, but this was upon a wholly different principle. 
It was the right of every British subject to be exempt from 
taxation, except by his own consent ; and as the colonies 
were not, and from their local situation could not be, re- 
presented in parliament, the right of that body to tax them 
was denied, upon a fundamental principle of English li- 
berty. But the right of the mother country to regulate 
commerce among her colonies is of a different character, 
and it never was denied to England by her American colo- 
nies, so long as a hope of reconciliation remained to them. 
In like manner, the facts relied on by Mr. Jay, that ' all 
the people of this country were then subjects of the king 
of Great Britain, and owed allegiance to him,' and that ' all 
the civil authority then existing or exercised here flowed 
from the head of the British empire,' are but the usual in- 
cidents of colonial dependence, and are by no means pecu- 
liar to the case he was considering. They do, indeed, 
prove a unity between all the colonies and the mother ccrun- 
try, and shew that these, taken altogether, are, in the 
strictest sense of the terms, 'one people;' but I am at a 
loss to perceive how they prove, that two or more parts or 
subdivisions of the same empire necessarily constitute 
' one people.' If this be true of the colonies, it is equally 
true of any two or more geographical sections of England 
proper ; for every one of the reasons assigned applies as 
strictly to this case as to that of the colonies. Any two 
countries may be ' one people,' or ' a nation de facto,' if 
they can be made so by the facts that their people are ' sub- 
jects of the king of Great Britain, and owe allegiance to 
him,' and that ' all the civil authority exercised therein 
flows from the head of the British empire.' 

" It is to be regretted that the author has not given us 
his own views of the sources from which these several 



20 LECTURES ON 

rights and powers were derived. If they authorize his 
conclusion, that there was any sort of unity among the peo- 
ple of the several colonies, distinct from their common 
connexion with the mother country, as parts of the same 
empire, it must be because they flowed from something in 
the relation betwixt the colonies themselves, and not from 
their common relation to the parent country. Nor is it 
enough that these rights and powers should, in point of 
fact, flow from the relation of the colonies to one another ; 
they must be the necessary result of their political condi- 
tion. Even admitting, then, that they would, under any 
state of circumstances, warrant the conclusion which the 
author has drawn from them, it does not follow that the 
conclusion is correctly drawn in the present instance. For 
aught that he has said to the contrary, the right of every 
colonist to inhabit and inherit lands in every colony, whe- 
ther his own or not, may have been derived from positive 
compact and agreement among the colonies themselves; 
and this presupposes that they were distinct and separate, 
and not ' one people.' And so far as the rights of the mo- 
ther country are concerned, they existed in the same form, 
and to the same extent, over every other colony of the em- 
pire. Did this make the people of all the colonies ' one 
people V If so, the people of Jamaica, the British East 
Indian possessions and the Canadas are, for the very same 
reason, ' one people' at this day. If a common allegiance 
to a common sovereign, and a common subordination to 
his jurisdiction, are sufficient to make the people of differ- 
ent countries ' one people,' it is not perceived (with all de- 
ference to Mr. chief justice Jay) why the people of Gaul, 
Britain and Spain might not have been ' one people,' while 
Roman provinces, notwithstanding ' the patriots' did not 
say so. The general relation between colonies and the pa- 
rent country is as well settled and understood as any other, 
and it is precisely the same in all cases, except where spe- 
cial consent and agreement may vary it. Whoever, there- 
fore, would prove that any peculiar unity existed between 
the American colonies, is bound to shew something in their 
charters, or some peculiarity in their condition, to exempt 
them from the general rule. Judge Story was too well ac- 
quainted with the state of the facts to make any such at- 
tempt in the present case. The congress of the nine co- 



CONSTITUTIONAL LAW. 21 

lonies, which assembled at New York, in October 1765, 
declare, that the colonists ' owe the same allegiance to the 
crown of Great Britain, that is owing from his subjects 
born within the realm, and all due subordination to that 
august body, the parliament of Great Britain.' — ' That the 
colonists are entitled to all the inherent rights and liberties 
of his [the king's] natural born subjects within the kingdom 
of Great Britain.' We have here an all-sufficient founda- 
tion of the right of the crown to regulate commerce among 
the colonies, and of the right of the colonists to inhabit 
and to inherit land in each and all the colonies. They 
were nothing more than the ordinary rights and liabilities 
of every British subject ; and, indeed, the most that the 
colonies ever contended for was an equality, in these re- 
spects, with the subjects born in England. The facts, 
therefore, upon which our author's reasoning is founded, 
spring from a different source from that from which he is 
compelled to derive them, in order to support his conclu- 
sion. 

" So far as the author's argument is concerned, the sub- 
ject might be permitted to rest here. Indeed, one would 
be tempted to think, from the apparent carelessness and in- 
difference with which the argument is urged, that he him- 
self did not attach to it any particular importance. It is 
not his habit to dismiss grave matters with such slight ex- 
amination, nor does it consist with the character of his 
mind to be satisfied with reasoning which bears even a 
doubtful relation to his subject. Neither can it be supposed 
that he would be willing to rely on the simple ipse dixit of 
chief justice Jay, unsupported by argument, unsustained 
by any references to historical facts, and wholly indefinite 
in extent and bearing. Why, then, was this passage writ- 
ten ? As mere history, apart from its bearing on the con- 
stitution of the United States, it is of no value in this work, 
and is wholly out of place. All doubts upon this point will 
be removed in the progress of this examination. The 
great effort of the author, throughout his entire work, is to 
establish the doctrine, that the constitution of the United 
States is a government of ' the people of the United States,' 
as contradistinguished from the people of the several 
states ; or, in other words, that it is a consolidated, and 
not a federative system. His construction of every con- 



22 LECTURES ON 

tested federal power depends mainly upon this distinction ; 
and hence the necessity of establishing a oneness among 
the people of the several colonies, prior to the revolution. 
It may well excite our surprise, that a proposition so ne- 
cessary to the principal design of the work, should be 
stated with so little precision, and dismissed with so little 
effort to sustain it by argument. One so well informed as 
judge Story, of the state of political opinions in this coun- 
try, could scarcely have supposed that it would be received 
as an admitted truth, requiring no examination. It enters 
too deeply into grave questions of constitutional law, to be 
so summarily disposed of We should not be content, 
therefore, with simply proving that the author has assigned 
no sufficient reason for the opinion he has advanced. The 
subject demands of us the still farther proof that his opi- 
nion is, in fact, erroneous, and that it cannot be sustained 
by any other reasons. 

" In order to constitute ' one people,' in a political sense, 
of the inhabitants of different countries, something more is 
necessary than that they should owe a common allegiance 
to a common sovereign. Neither is it sufficient that, in 
some particulars, they are bound alike, by laws which that 
sovereign may prescribe : nor does the question depend 
on geographical relations. The inhabitants of different 
islands may be one people, and those of contiguous coun- 
tries maybe, as we know they in fact are, different nations. 
By the term ' people,' as here used, we do not mean merely 
a number of persons. We mean by it a political corpora- 
tion, the members of which owe a common allegiance to 
a common sovereignty, and do not owe any allegiance 
which is not common ; who are bound by no laws except 
such as that sovereignty may prescribe ; who owe to one 
another reciprocal obligations ; who possess common poli- 
tical interests ; who are liable to common political duties ; 
and who can exert no sovereign power except in the name 
of the whole. Any thing short of this, would be an imper- 
fect definition of that political corporation which we call 
' a people.' 

" Tested by this definition, the people of the American 
colonies were, in no conceivable sense, ' one people.' 
They owed, indeed, allegiance to the British king, as the 
head of each colonial government, and as forming a part 



CONSTITUTIONAL LAW. 23 

thereof; but this allegiance was exclusive, in each colony, 
to its own government, and, consequently, to the king as 
the head thereof, and was not a common allegiance of the 
people of all the colonies to a common head.(Z) These 
colonial governments were clothed with the sovereign pow- 
er of making laws, and of enforcing obedience to them 
from their own people. The people of one colony owed no 
allegiance to the government of any other colony, and were 
not bound by its laws. The colonies had no common le- 
gislature, no common treasury, no common military pow- 
er, no common judicatory. The people of one colony 
were not liable to pay taxes to any other colony, nor to 
bear arms in its defence ; they had no right to vote in its 
elections ; no influence or control in its municipal govern- 
ment, no interest in its municipal institutions. There was 
no prescribed form by which the colonies could act to- 
gether, for any purpose whatever ; they were not known as 
' one people' in any one function of government. Although 
they were all, alike, dependencies of the British crown, 
yet, even in the action of the parent country, in regard to 
them, they were recognized as separate and distinct. They 
were established at different times, and each under an au- 
thority from the crown, which applied to itself alone. 
They were not even alike in their organization. Some 
were provincial, some proprietary, and some charter go- 
vernments. Each derived its form of government from the 
particular instrument establishing it, or from assumptions 
of power acquiesced in by the crown, without any con- 
nexion with, or relation to, any other. They stood upon 
the same footing, in every respect, with other British colo- 
nies, with nothing to distinguish their relation either to 
the parent country or to one another. The charter of any 
one of them might have been destroyed, without in any 
manner affecting the rest. In point of fact, the charters 
of nearly all of them were altered, from time to time, and 
the whole character of their governments changed. These 
changes were made in each colony for itself alone, some- 

(l) The resolutions of Virginia, in 1769, shew that she considered 
herself merely as an appendage of the British crown ; that her le- 
gislature was alone authorized to tax her; and that she had aright 
to call on her king, who was also king of England, to protect her 
against the usurpations of the British parliament. . 



24 LECTURES ON 

times by its own action, sometimes by the power and au- 
thority of the crown ; but never by the joint agency of any 
other colony, and never with reference to the wishes or 
demands of any other colony. Thus they were separate 
and distinct in their creation ; separate and distinct in the 
forms of their governments ; separate and distinct in the 
changes and modifications of their governments, which 
were made from time to time ; separate and distinct in po- 
litical functions, in political rights, and in political duties. 

" The provincial government of Virginia was the first es- 
tablished. The people of Virginia owed allegiance to the 
British king, as the head of their own local government. 
The authority of that government was confined within cer- 
tain geographical limits, known as Virginia, and all who 
lived within those limits were ' one people.' When the 
colony of Plymouth was subsequently settled, were the 
people of that colony 'one' with the people of Virginia? 
When, long afterwards, the proprietary government of 
Pennsylvania was established, were the followers of Wil- 
liam Penn ' one' with the people of Plymouth and Virginia? 
If so, to which government was their allegiance due? 
Virginia had a government of her own, Pennsylvania a go- 
vernment of her own, and Massachusetts a government of 
her own. The people of Pennsylvania could not be 
equally bound by the laws of all three governments, be- 
cause those laws might happen to conflict; they could not 
owe the duties of citizenship to all of them alike, because 
they might stand in hostile relations to one another. Ei- 
ther, then, the government of Virginia, which originally 
extended over the whole territory, continued to be supreme 
therein, (subject only to its dependence upon the British 
crown,) or else its supremacy was yielded to the new go- 
vernment. Every one knows that this last was the case ; 
that within the territory of the new government the au- 
thority of that government alone prevailed. How then 
could the people of this new government of Pennsylvania 
be said to be ' one' with the people of Virginia, when they 
were not citizens of Virginia, owed her no allegiance and 
no duty, and when their allegiance to another government 
might place them in the relation of enemies of Virginia? 

" In farther illustration of this point, let us suppose that 
some one of the colonies had refused to unite in the de- 



CONSTITUTIONAL LAW. )io 

claration of independence ; what relation would it then have 
held to the others? Not having disclaimed its allegiance 
to the British crown, it would still have continued to be a 
British colony, subject to the authority of the parent coun- 
try, in all respects as before. Could the other colonies 
have rightfully compelled it to unite with them in their re- 
volutionary purposes, on the ground that it was part and 
parcel of the ' one people,' known as the people of the co- 
lonies? No such right was ever claimed, or dreamed of, 
and it will scarcely be contended for now, in the face of 
the known history of the time. Such recusant colony 
would have stood precisely as did the Canadas, and every 
other part of the British empire. The colonies which had 
declared war, would have considered its people as enemies, 
but would not have had a right to treat them as traitors, or 
as disobedient citizens resisting their authority. To what 
purpose, then, were the people of the colonies ' one peo- 
ple,' if, in a case so important to the common welfare, 
there was no right in all the people together, to coerce the 
members of their own community to the performance of a 
common duty ? 

" It is thus apparent that the people of the colonies were 
not ' one people,' as to any purpose involving allegiance on 
the one hand, or protection on the other. What then, I 
again ask, are the ' many purposes' to which the author al- 
ludes ? It is certainly incumbent on him who asserts this 
identity, against the inferences most naturally deducible 
from the historical facts, to shew at what time, by what 
process, and for what purposes, it was effected. He claims 
too much consideration for his personal authority, when 
he requires his readers to reject the plain information of 
history, in favour of his bare assertion. The charters of the 
colonies prove no identity between them, but the reverse ; 
and it has already been shewn that this identity is not the 
necessary result of their common relation to the mother 
country. By what other means they came to be ' one,' in 
any intelligible and political sense, it remains for the au- 
thor to explain. 

" If these views of the subject be not convincing, the au- 
thor himself has furnished proof, in all needful abundance, 
of the incorrectness of his own conclusion. He tells us 
that, ' though the colonies had a common origin, and owed 
3 



26 LECTURES ON 

a common allegiance, and the inhabitants of each were 
British subjects, they had no direct political connexion with 
each other. Each was independent of all the others; each, 
in a limited sense was sovereign within its own territory. 
There was neither alliance nor confederacy between them. 
The assembly of one province could not make laws for 
another, nor confer privileges which were to be enjoyed or 
exercised in another, farther than they could be in any in- 
dependent foreign state. As colonies they were also ex- 
cluded from all connexion with foreign states. They were 
known only as dependencies, and they followed the fate of 
the parent country, both in peace and war, without having 
assigned to them, in the intercourse or diplomacy of na- 
tions, any distinct or independent existence. They did 
not possess the power of forming any league or treaty 
among themselves, tohich would acquire an obligatory force, 
without the assent of the parent state. And though their 
mutual wants and necessities often induced them to asso- 
ciate for common purposes of defence, these confederacies 
were of a casual and temporary nature, and were allowed 
as an indulgence, rather than as a right. They made se- 
veral efforts to procure the establishment of some general 
superintending government over them all ; but their own 
differences of opinion, as well as the jealousy of the crown, 
made these efforts abortive.' 

" The English language affords no terras stronger than 
those which are here used to convey the idea of separate- 
ness, distinctness and independence, among the colonies. 
No commentary could make the description plainer, or 
more full and complete. The unity, contended for by the 
author, no where appears, but it is distinctly disaffirmed 
in every sentence. The colonies were not only distinct in 
their creation, and in the powers and faculties of their 
governments, but there was not even ' an alliance or con- 
federacy between them.' They had no ' general superin- 
tending government over them all,' and tried in vain to es- 
tablish one. Each was ' independent of all the others,' 
having its own legislature, and without power to confer 
either right or privilege beyond its own territory. ' Each, 
in a limited sense, was sovereign within its own territory;' 
and to sum up all, in a single sentence, 'they had no di- 
rect political connexion with each other!' The condition 



CONSTITUTIONAL LAW. 27 

of the colonies was, indeed, anomalous, if our author's 
view of it be correct. They presented the singular spec- 
tacle of ' one people,' or political corporation, the mem- 
bers of which had ' no direct political connexion with 
each other,' and who had not the power to form such con- 
nexion, even ' by league or treaty among themselves.' 

" This brief review will, it is believed, be sufficient to 
convince the reader, that our author has greatly mistaken 
the real condition and relation of the colonies, in suppo- 
sing that they formed ' one people,' in any sense, or for 
any purpose whatever. He is entitled to credit, however, 
for the candour with which he has stated the historical 
facts. Apart from all other sources of information, his 
book affords to every reader abundant materials for the 
formation of his own opinion, and for enabling him to de- 
cide satisfactorily whether the author's inferences from the 
facts, which he himself has stated, be warranted by them, 
or not." 



LECTURES ON CONSTITUTIONAL LAW. 



LECTURE II. 

So much, young gentlemen, for the oneness of the colo- 
nies as such. We will now proceed to another singular 
position of the learned commentator on the constitution, in 
furtherance of his favourite theory of the oneness of the 
American people. After having attempted to sustain his 
views of the anti-revolutionary state of the colonies, he 
proceeds to consider their condition during the throes of 
the revolution, and contends that neither anterior to the 
declaration of independence, nor subsequent to that event, 
were the former colonies " sovereign and independent states 
in the sense in which the term sovereign is applied to 
states." As the positions of judge Story are very fre- 
quently ingeniously insinuated, rather than distinctly an- 
nounced, and as I am unwilling to misstate his opinions, or 
do injustice to his arguments, I shall insert the whole of 
this passage in a note. (a) 

(a) § 200. No redress of grievances having followed upon the 
many appeals made to the king, and to parliament, by and in be- 
half of the colonies, either conjointly or separately, it became ob- 
vious to them, that a closer union and co-operation were necessary 
to vindicate their rights and protect their liberties. If a resort to 
arm_s should be indispensable, it was impossible to hope for suc- 
06^, but in united eiforts. If peaceable redress was to be sought, it 
was as clear, that the voice of the colonies must be heard, and their 
power felt in a national organization. In 1774 Massachusetts re- 
commended the assembling of a continental congress to deliberate 
upon the state of public affairs : and according to her recommen- 
dation, delegates were appointed by the colonies for a congress, to 
be held in Philadelphia in the autumn of the same year. In some 
of the legislatures of the colonies, which were then in session, de- 
legates were appointed by the popular, or representative branch ; 
and in other cases they were appointed by conventions of the people 
in the colonies.* The congress of delegates (calling themselves in 
their more formal acts " the delegates appointed by the good people 
of these colonies," assembled on the 4th of September 1774 ;t and 
having chosen officers, they adopted certain fundamental rules for 
their proceedings. 

* 1 Journ. of Cong. 2, 3, Slc. 27, 45 ; 9 Dane's Abridg. App. $ 5, p. 16, (^ 10, 
p. 21. 
t All the states were represented, except Georgia. 

3* 



30 LECTURES ON 

In the commencement of this sketch of the state of the 
colonies during the revolution, we are told (§ 300) that a 
congress was recommended by Massachusetts in 1774 ; 

§ 201. Thus was organized under the auspices, and with the 
consent of the people, acting directly in their primary, sovereign 
capacity, and without the intervention of the functionaries, to 
whom the ordinary powers of government were delegated in the 
colonies, the first general or national government, which has been 
very aptly called "the revolutionary government," since in its 
origin and progress it was wholly conducted upon revolutionary 
principles.* The congress, thus assembled, exercised de facto and 
de jure a sovereign authority ; not as the delegated agents of the 
governments de facto of the colonies, but in virtue of original 
powers derived from the people. The revolutionary government, 
thus formed, terminated only,. when it was regularly superceded 
by the confederated government under the articles finally ratified, 
as we shall hereafter see, in 1781. t 

§ 202. The first and most important of their acts was a declara- 
tion, that in determining questions in this congress, each colony 
or province should have one vote ; and this became the established 
course during the revolution. They proposed a general congress 
to be held at the same place in May, in the next year. They ap- 
pointed committees to take into consideration their rights and 
grievances. They passed resolutions, that "after the 1st of De- 
cember 1774, there shall be no importation into British America 
from Great Britain or Ireland of any goods, &c. or from anj^ 
other place, of any such goods, as shall have been exported from 
Great Britain or Ireland;" that "after the 10th of September 
1775, the exportation of all merchandize, &c. to Great Britain, Ire- 
land, and the West Indies ought to cease, unless the grievances of 
America are redressed before that time. "t They adopted a declara- 
of rights, not differing in substance from that of the congress of 
1765,11 and affirming, that the respective colonies are entitled to 
the common law of England and the benefit of such English sta- 
tutes, as existed at the time of their colonization, and which they 
have by experience respectively found to be applicable to their 
local and other circumstances. They also, in behalf of themselves 
and their constituents, adopted and signed certain articles of asso- 
ciation, containing an agreement of non-importation, non-exporta- 
tion, and non-consumption, in order to carry into effect the prece- 
ding resolves ; and also an agreement to discontinue the slave-trade. 
They also adopted addresses to the people of England, to the neigh- 
bouring British colonies, and to the king, explaining their grie- 
vances, and requesting aid and redress. 

§ 203. In May 1775, a second congress of delegates met from all 
the states. § These delegates were chosen, as the preceding had 

■* 9 Dane's Abridg. App. P. 1, $5, p. 16, § 13, p. 23. 
t Sergeant on Const. Introd. 7, 8, (2d ed.) 
J 1 Jour, of Cong. 21. 
II See ante, note, p. 179. 

^Geoigia did not send delegates until the 15th of July, 1775, who did not take 
their seats until the 13th of September. 



CONSTITUTIONAL LAW. 31 

which accordingly met on the 4th of September, and 
(§ 201) that thus was organized under the auspices and 
with the consent of the people, acting directly in their pri- 

been, partly by the popular branch of the state legislatures, when 
in session; but principally by conventions of the people in the va- 
rious states.* In a ^ew instances the choice of the legislative body 
was confirmed by that of a convention, and e conversoJ They 
immediately adopted a resolution, prohibiting all exportations to 
Quebec, Nova Scotia, St. Johns, Newfoundland, Georgia, ex- 
cept St. Johns Parish, and East and West Florida. t This was 
followed up by a resolution, that the colonies be immediately 
put into a state of defence. They prohibited the receipt and 
negotiation of any British government bills, and the supply of 
any provisions or necessaries for the British army and navy 
in Massachusetts or transports in their service. § They recom- 
mended to Massachusetts to consider the offices of governor and 
lieutenant governor of that province vacant, and to make choice 
of a counsel by the representatives in assembly, by whom the 
powers of government should be exercised, until a governor of 
the king's appointment should consent to govern the colony ac- 
cording to its charter. They authorized the raising of continental 
troops, and appointed general Washington commander in chief, to 
whom they gave a commission in the name of the delegates of the 
united colonies. They had previously authorized certain military 
measures, and especially the arming of the militia of New York, 
and the occupation of Crown Point and Ticonderoga. They au- 
thorized the emission of two millions of dollars in bills of credit, 
pledging the colonies to the redemption thereof. They framed 
rules for the government of the army, they published a solemn de- 
claration of the causes of their taking up arms, an address to the 
king, entreating a change of measures, and an address to the peo- 
ple of Great Britain, requesting their aid, and admonishing them 
of the threatening evils of a separation. They erected a general 
post-office, and organized the department for all the colonies. They 
apportioned the quota that each colony should pay of the bills 
emitted by congress. II 

§ 204. At a subsequent adjournment, they authorized the equip- 
ment of armed vessels to intercept supplies to the British, and the 
organization of a marine corps. They prohibited all exportations, 
except from colony to colony under the inspection of committees. 
They recommended to New Hampshire, Virginia and South Caro- 
lina, to call conventions of the people to establish a form of govern- 
ment. TT They authorized the grant of commissions to capture 
armed vessels and transports in the British service ; and recom- 

* See Pmhallow v. Doane, 3 Dall. 54, and particularly the opinions of Iredell 
J. and Blair J. on this point. Journals of 1775, p. 73 to 79. 
t Journals of Congress of 1775, p. 73 to 79. 
X Journals of Congress of 1775, p. 103. 
§ Journals of Congress of 1775, p. 115. 
II Journals of Congress of 1775, p. 177. 
V Journals of Congress of 1775, p. 231, 235, 279. 



32 LECTURES ON 

mary sovereign capacity, and without the intervention of the 
functionaries to whom the ordinary powers of government 
were delegated, the first general or national government, 

mended the creation of prize courts in each colony, reserving a 
right of appeal to congress.* They adopted rules for the regula- 
tion of the navy, and for the division of prizes and prize money. t 
They denounced, as enemies, all, who should obstruct or discou- 
rage the circulation of bills of credit. They authorized further 
emissions of bills of credit, and created two military departments 
for the middle and southern colonies. They authorized general 
reprisals, and the equipment of private armed vessels against Bri- 
tish vessels and property .t They organized a general treasury de- 
partment. They authorized the exportation and importation of all 
goods to and from foreign countries, not subject to Great Britain, 
with certain exceptions ; and prohibited the importation of slaves ; 
and declared a forfeiture of all prohibited goods. § They recom- 
mended to the respective assemblies and conventions of the colo- 
nies, where no government, sufficient to the exigencies, had been 
established, to adopt such government, as m the opinion of the re- 
presentatives should best conduce to the happiness and safety of 
their constituents in particular, and America in general, and adopt- 
ed a preamble, which stated, " that the exercise of every kind of 
authority under the crown of Great Britain should be totally sup- 
pressed. "|1 

§ 205. These measures, all of which progressively pointed to a 
separation from the mother country, and evinced a determination 
to maintain, at every hazard, the liberties of the colonies, were 
soon followed by more decisive steps. On the 7th of June 1776, 
certain resolutions respecting independency were moved, which 
were referred to a committee of the whole. On the tenth of June 
it wac resolved, that a committee be appointed to prepare a decla- 
ration, " that these united colonies are, and of right ought to be, 
free and independent states ; that they are absolved from all alle- 
giance to the British crown ; and that all political connexion be- 
tween them and the state of Great Britain is, and ought to be, dis- 
solved. "H On the 11th of June a committee was appointed to pre- 
pare and digest the form of a confederation to be ent3red into be- 
tween the colonies, and also a committee to prepare a plan of trea- 
ties to be proposed to foreign powers.** On the 2Sth of June the 
committee appointed to prepare a Declaration of Independence 
brought in a draught. On the second of July, congress adopted 
the resolution for Independence ; and on the 4th of July they 
adopted the Declaration of Independence ; and thereby solemnly 

* Journals of Congress of 177,5, p. 259, 260, &c. 

t Journals of Congress of 1776, p. 13. 

X J )urnals of Congress of 1776, p. 1C6, 107, 118, 119. 

I Journals of Conaress of 1776, p. 122, 123. 

II Journals of Congress of 1776, p. 166, 174. 
ir Journals of Congress of 1776, p. 205, 206. 
** Journals of Congress of 1776, p. 207. 



CONSTITUTIONAL LAW. 33 

and "that the congress thus assembled, exercised de facto 
and de jure a sovereign authority ; not as the delegated 
agents of the governments de facto of the colonies, but in 

published and declared, " That these united colonies are, and of 
right ought to be, free and independent states; that they are ab- 
solved from all allegiance to the British crown ; and that all poli- 
tical connexion between them and the state of Great Britain is, 
and ought to be, totally dissolved ; and that, as free and indepen- 
dent states, they have full power to leTy war, conclude peace, con- 
tract alliances, establish commerce, and to do all other acts and 
things, which independent states may of right do." 

§ 206. These minute details have been given, not merely, be- 
cause they present an historical view of the actual and slow pro- 
gress towards independence ; but because they give rise to several 
very important considerations respecting the political rights and 
sovereignty of the several colonies, and of the union, which was 
thus spontaneously formed by the people of the united colonies. 

§ 207. In the first place, antecedent to the Declaration of Inde- 
pendence, none of the colonies were, or pretended to be sovereign 
states, in the sense, in which the term " sovereign" is sometimes 
applied to states.* The term "sovereign" or "sovereignty" is 
used in different senses, which often leads to a confusion of ideas, 
and sometimes to very mischievous and unfounded conclusions. 
By " sovereignty" in its largest sense is meant, supreme, absolute, 
uncontrollable power, the jus summi imperii,^ the absolute right 
to govern. A state or nation is a body politic, or society of men, 
united together for the purpose of promoting their mutal safety 
and advantage by their combined strength. t By the very act of 
civil and political association, each citizen subjects himself to the 
authority of the whole ; and the authority of all over each mem- 
ber essentially belongs to the body politic. § A state, which pos- 
sesses this absolute power, without any dependence upon any fo- 
reign power or state, is in the largest sense a sovereign state. 1| 
And it is wholly immaterial, what is the form of the government, 
or by whose hands this absolute authority is exercised. It may 
be exercised by the people at large, as in a pure democracy ; or 
by a select few, as in an absolute aristocracy ; or by a single person, 
as in an absolute monarchy. IT But "sovereignty" is often used 
in a far more limited sense, than that, of which we have spoken, 
to designate such political powers, as in the actual organization 
of the particular state or nation are to be exclusively exer- 
cised by certain public functionaries, without the control of any 
superior authority. It is in this sense, that Blackstone employs 
it, when he says, that it is of " the very essence of a law, that it 
is made by the supreme power. Sovereignty and legislature are, 

* 3 Dall. 110. Per Blair J.; 9 Dane's Abridg. Appx. <^ 2, p. 10, § 3, p. 12, § 5, p. 16. 

t 1 Bl. Comm. 49 ; 2 Dall. 471. Per Jav C. J. 

t Vattel, B. 1, ch. 1, § 1 ; 2 Dall. 455. Per Wilson J. 

I Vattel, B. 1, ch. 1, vj 2. 

II 2 Dall. 456, 457. Per Wilson J. 
IT Vattel, B. 1, ch. 1,(^2, 3. 



34 LECTURES ON 

virtue of original powers derived from the people." Now in 
this short passage there is a material misstatement even ac- 
cording to the learned author himself He here says, that 

indeed, convertible terms; one cannot subsist without the other."* 
Now, in every limited government the power of legislation is, or 
at least may be, limited at the will of the nation ; and therefore 
the legislature is not in an absolute sense sovereign. It is in the 
same sense, that Blackstone says, " the law ascribes to the king of 
England the attribute of sovereignty or pre-eminence, "t because 
in respect to the powers confided to him, he is dependant on no 
man, and accountable to no man, and subjected to no superior ju- 
risdiction. Yet the king of England cannot make a law ; and his 
acts, beyond the powers assigned to him by the constitution, are 
utterly void. 

§ 208. In like manner the word " state" is used in various senses. 
In in its most enlarged sense it means the people composing a par- 
ticular nation or community. In this sense the state means the 
whole people, united into one body politic ; and the state, and the 
people of the state, are equivalent expressions.! Mr. Justice Wil- 
son in his Law Lectures, uses the word "state" in its broadest 
sense. " In free states," says he, "the people form an artificial 
person, or body politic, the highest and noblest, that can be known. 
They form that moral person, which in one of my former lectures, § 
I described, as a complete body of free, natural persons, united to- 
gether for their common benefit; as having an understanding and 
a will; as deliberating, and resolving, and acting; as possessed of 
interests, which it ought to manage ; as enjoying rights, which it 
ought to maintain ; and as lying under obligations, which it ought 
to perform. To this moral person, we assign, by way of eminence, 
the dignified appellation of " state. "|| But there is a more limi- 
ted sense, in which the word is often used, where it expresses 
merely the positive or actual organization of the legislative, exe- 
cutive, or judicial powers. TT Thus, the actual government of a 
state is frequently designated by the name of the state. We say, 
the state has power to do this or that ; the state has passed a law, 

* 1 Bl. Comm. 46. See also 1 Tucker's Black. Comm. App. note A., a com- 
mentary on this clause of the author's text. 

t 1 Bl. Cornra. 241. 

X Penhallow v. Doanc, 1 Peters's Cond. Rep. 37, 38, 39; 3 Dall. R. 93, 94. Per Ire- 
dellJ. ChUholmv. 6eorgia,2 Ban. 455. PerjWilson J. S. C. 2 Cond. Rep. B56, 
670 ; 2 Wilson's Lect. 120 ; Dane's Appx. § 50, p. 63. 

§ 1 Wilson's Lect. 304, 305. 

II 2 Wilson's Lect. 120, 121. 

it Mr. Madison, in his elaborate report in the Virginia legislature in January 
1800, adverts to the different senses, in which the word " state" is used. He 
says, " It is indeed true, that the term ' states' is sometimes used in a vasrue 
sense, and sometimes in different senses, according to the subject, to which it 
is applied. Thus it sometimes means the separate sections of territory, occu- 
pied by the political societies within each ; sometimes the particular govern- 
ments established by those societies ; somstimes those societies, as organized 
into those particular governments ; and lastly, it means the people, composing 
those political societies in their highest sovereign capacity." 



CONSTITUTIONAL LAW. 35 

" the members of the congress acted not as the delegated 
agents of the governments de facto, but in virtue of origi- 
nal powers derived from the people." And yet in the next 

or prohibited an act, meaning no more than, that the proper func- 
tionaries, organized for that purpose, have power to do the act, or 
have passed the law, or prohibited the particular action. The so- 
vereignty of a nation or state, considered with reference to its as- 
sociation, as a body politic, may be absolute and uncontrollable in 
all respects, except the limitations, which it chooses to impose upon 
itself.* But the sovereignty of the government, organized within 
the state, may be of a very limited nature. It may extend to few, 
or to many objects. It may be unlimited, as to some 3 it may be 
restrained, as to others. To the extent of the power given, the 
government may be sovereign, and its acts may be deemed the so- 
vereign acts of the state. J^ay the state, by which we mean the 
people composing the state, may divide its sovereign powers among 
various functionaries, and each in the limited sense would be sove- 
reign in respect to the powers, confided to each ; and dependent in 
all other cases. t Strictly speaking, in our republican forms of go- 
vernment, the absolute sovereignty of the nation is in the people 
of the nation ; and the residuary sovereignty of each state, not 
granted to any of its public functionaries, is in the people of the 
state. + 

§ 209. There is another mode, in which we speak of a state as 
sovereign, and that is in reference to foreign states. Whatever 
may be the internal organization of the government of any state, 
if it has the sole power of governing itself, and is not dependent 
upon any foreign state, it is called a sovereign state ; that is, it is a 
state having the same rights, privileges, and powers, as other inde- 
pendent states. It is in this sense, that the term is generally used 
in treatises and discussions on the law of nations. A full conside- 
ration of this subject will more properly find place in some future 
page.§ 

* 2 Dall. 433 ; Iredell J. Id. 455, 456. Per Wilson J. 

t3Dall. 93. PerlredellJ. 2 Dall. 455, 457. Per Wilson J. 

j 2 Dall. 471, 472. Per Jay C. J. 

air. J. Q,. Adams, in his Oration on the 4th of July 1831, published after the 
preparation of these commentaries, uses the following language : " It is not 
true, that there must reside in all governments an absolute, uncontrollable, ir- 
resistible and despotic power; nor is such power in any manner essential to 
sovereignty. Uncontrollable power exists in no government on earth. The 
sternest despotisms in any region and in every age of the world, are and have 
been under perpetual control. Unlimited power belongs not to man ; and rot- 
ten will be the foundation of every government, leaning upon such a maxim 
for its support. Least of all can it be predicated of a government, professing 
to be founded upon an original compact. The pretence of an absolute irresisti- 
ble, despotic power, existing in every government somewhere, is incompatible 
with the first principles of natural right." 

§ Dr. Rush, in a political communication, in 1786, uses the term " sovereign- 
ty" in another, and somewhat more limited sense.* He says, " The people of 
America have mistaken the meaning of the word 'sovereignty.' Hence each 
state pretends to be sovereign. In Europe it is applied to those states, which 
possess the power of making war and peace, of forming treaties, and the like. 

* 1 Amer. Museuin, 8, 9. 



36 LECTURES ON 

preceding section we are told that " in some of the legis- 
latures of the colonies, which were then in session, dele- 
gates were appointed hy the 'popular or representative 

§ 210. Now it is apparent, that none of the colonies before the 
revolution were, in the most large and general sense, indepen- 
dent, or sovereign communities. They were all originally settled 
under, and subjected to the British crown.* Their powers and au- 
thorities were derived from, and limited by their respective char- 
ters. All, or nearly all, of these charters controlled their legisla- 
tion by prohibiting them from making laws repugnant, or contrary 
to those of England. The crown, in many of them, possessed a 
negative upon their legislation, as well as the exclusive appoint- 
ment of their superior officers; and a right of revision, by way of 
appeal, of the judgments of their courts.! In their most solemn 
declarations of rights, they admitted themselves bound, as British 
subjects, to allegiance to the British crown; and as such, they 
claimed to be entitled to all the rights, liberties and immunities of 
free born British subjects. They denied all power of taxation, ex- 
cept by their own colonial legislatures ; but at the same time they 
admitted themselves bound by acts of the British parliament for 
the regulation of external commerce, so as to secure the commer- 
cial advantages of the whole empire to the mother country, and 
the commercial benefits of its respective members X So far, as re- 
spects foreign states, the colonies were not, in the sense of the 
laws of nations, sovereign states; but mere dependencies of Great 
Britain. They could make no treaty, declare no war, send no am- 
bassadors, regulate no intercourse or commerce, nor in any other 
shape act, as sovereigns, in the negotiations usual between inde- 
pendent states. In respect to each other, they stood in the com- 
mon relation of British subjects ; the legislation of neither could 
be controlled by any other ; but there was a common subjection to 
the British crown. § If in any sense they might claim the attri- 
butes of sovereignty, it was only in that subordinate sense, to 
which we have alluded, as exercising within a limited extent cer- 
tain usual powers of sovereignty. They did not even affect to 
claim a local allegiance. || 

§ 21). In the next place, the colonies did not severally act for 
themselves, and proclaim their own independence. It is true, that 

As this power belongs only to congress, they are the only sovereign power in 
the United States. We commit a similar mistake in our ideas of the word ' in- 
dependent.' No individual state, as such, has any claim to independence. She 
is independent only in a union with her sister states in congress." Dr. Barton, 
on the other liand, in a similar essay, explains the operation of the system of 
the confederation in the manner, which has been given in the text.* 

*9DalI. 471. Per Jay, C. J. 

t See Marshall's Hist, of Colonies, p. 483 ; Journal of Congress, 1774, p. 29. 

X Journal of Congress 1774, p. 27, 29, 38, 39; 1775, p. 152, 156; Marshall's 
Hist, of Colonies, ch. 14, p. 412, 483. 

$ 1 Chalmers's Annals, 686, 687 ; 2 Dal!. 470. Per Jay, C. J. 

II Journal of Congress, 1776, p. 982 ; 2 Haz. Coll. 591 ; Marsh. Colonies, App. 
No. 3, p. 469. 

*1 Amer. Miiseinn, 13, 14. 



CONSTITUTIONAL LAW. 37 

hranch, and in other cases they were appointed by conven- 
tions of the people in the colonies. How many were ap- 
pointed in one mode, and how many in the other, I have 

some of the states had previously formed incipient governments 
for themselves ; but it vs^as done in compliance with the recommen- 
dations of congress.* Virginia, on the 29th of June 1776, by a con- 
vention of delegates, declared " the government of this country, as 
formerly exercised under the crown of Great Britain, totally dissolv- 
ed;" and proceeded to form a new constitution of government. 
New Hampshire also formed a government in December 1775, which 
was manifestly intended to be temporary, " during (as they said) 
the unhappy and unnatural contest with Great Britain."! New 
Jersey, too, established a frame of government, on the 2d of July 
1776; but it was expressly declared that it should be void upon a 
reconciliation with Great Britain. + And South Carolina, in March 
1776, adopted a constitution of government; but this was, in like 
manner, " established until an accommodation between Great Bri- 
tain and America could be obtained. "§ But the declaration of the 
independence of all the colonies was the united act of all. It was 
" a declaration by the representatives of the United States of Ame- 
rica in congress assembled;" — "by the delegates appointed by the 
good people of the colonies," as in a prior declaration of rights 
they were called. || It was not an act done by the state govern- 
ments then organized; nor by persons chosen by them. It was 
emphatically the act of the whole people of the united colonies, by 
the instrumentality of their representatives, chosen for that, among 
other purposes. IT It was an act not competent to the state govern- 
ments, or any of them, as organized under their charters, to adopt. 
Those charters neither contemplated the case, nor provided for it. 
It was an act of original, inherent sovereignty by the people them- 
selves, resulting from their right to change the form of govern- 
ment, and to institute a new government, whenever necessary for 
their safety and happiness. So the declaration of independence 
treats it. No state had presumed of itself to form a new govern- 
ment, or to provide for the exigencies of the times, without con- 
sulting congress on the subject; and when they acted, it was in 
pursuance of the recommendation of congress. It was, therefore, 
the achievement of the whole for the benefit of the whole. The 
people of the united colonies made the united colonies free and in- 
dependent states, and absolved them from all allegiance to the Bri- 
tish crown. The declaration of independence has accordingly al- 
ways been treated, as an act of paramount and sovereign authority, 
complete and perfect per se, and ipso facto working an entire dis- 

* Journal of Congress, 1775, p. 135, 231, 235, 279; 1 Pitk. Hist. 351, 355; 
Marsh. Colon, ch. 14, p. 441, 447 ; 9 Hening's Stat. 112, 113; 9 Dane's Abridg. 
App. iS 5, p. 16. 

t 2 Belk. N. Hamp. ch. 25, p. 306, 308, 310 ; 1 Pitk. Hist. 351, 355. 

X Stokes's Hist. Colon. 51, 75. 

I Stokes's Hist. Colon. 105 ; 1 Pitk. Hist. 355. 

II Journal 1776, p. 241 ; Journal 1774, p. 27, 45. 

IT 2 Ball. 470, 471. Per Jay, C. J. ; 9 Dane's Abridg. App. § 12, 13, p. 23, 24. 

4 



38 LECTURES ON 

not at hand the means of ascertaining. It is sufficient that 
part of the members were appointed by the acting govern- 
ments, to disarm the argument of all its force, if indeed it 

solution of all political connexion with and allegiance to Great 
Britain. And this, not merely as a practical fact, but in a legal 
and constitutional view of the matter by courts of justice.* 

§ 212. In the debates in the South Carolina legislature, in Janu- 
ary 1788, respecting the propriety of calling a convention of the 
people to ratify or reject the constitution, a distinguished states- 
mant used the following language : " This admirable manifesto 
(i. e. the declaration of independence) sufficiently refutes the doc- 
trine of the individual sovereignty and independence of the seve- 
ral states. In that declaration the several states are not even enu- 
merated ; but after reciting in nervous language, and with con- 
vincing arguments, our right to independence, and the tyranny, 
which compelled us to assert it, the declaration is made in the fol- 
lowing words : ' We, therefore, the representatives of the United 
States, &c. do, in the name, &c. of the good people of these colo- 
nies, solemnly publish, &o. that these united colonies are, and of 
right ought to be, free and independent states.' The separate inde- 
pendence and individual sovereignty of the several states were 
never thought of by the enlightened band of patriots, who framed 
this declaration. The several states are not even mentioned by 
name in any part, as if it was intended to impress the maxim on 
America, that our freedom and independence arose from our union, 
and that without it we could never be free or independent. Let 
us then consider all attempts to weaken this union by maintain- 
ing, that each state is separately and individually independent, as 
a species of political heresy, which can never benefit us, but may 
bring on us the most serious distresses.":]: 

* 2 Dallas's R. 470. 

t Mr. Charles Cotesworth Pinckney. 

X Debates in South Carolina, 1788, printed by A. E. Miller, Charleston, 1831, 
p. 43,44. — Mr. Adams, in his Oration on the 4th of July 1831, which is valuable 
for its views of constitutional principles, insists upon the same doctrine at con- 
siderable length. Though it has been published since the original preparation 
of these lectures, I gladly avail myself of an opportunity to use his authority 
in corroboration of the same views. " The union of the colonies had preceded 
this declaration, [of independence,] and even the commencement of tlie war. 
The declaration was joint, that the united colonies were free and independent 
states, but not that any one of them was a free and independent state, separate 
from the rest."^" The declaration of independence was a social compact, by 
which the whole people covenanted with each citizen, and each citizen with 
the whole people, that the united colonies were, and of right ought to be, free 
and independent states. To this compact union was as vital, as freedom or in- 
dependence."—" The declaration of independence announced the severance of 
the thirteen united colonies from the rest of the British empire, and the exist- 
ence of their people from that day forth as an independent nation. The people 
of all the colonies, speaking by their representatives, constituted themselves 
one moral person before the face of their fellow men."—" The declaration of 
independence was not a declaration of liberty merely acquired, nor was it a 
form of government. The people of the colonies were already free, and their 
forms of government were various. They were all colonies of a monarchy. The 
king of Great Britain was their common sovereign." 



CONSTITUTIONAL LAW. 39 

possessed any. It would be sufficient to demonstrate that 
the popular branch of the state legislatures were in part at 
least represented in congress, as political bodies, and that 

§ 213. In the next place we have seen, that the power to do this 
act was not derived from the state governments ; nor was it done 
generally with their co-operation. The question then naturally 
presents itself, if it is to be considered as a national act, in what 
manner did the colonies become a nation, and in what manner did 
congress become possessed of this national power .'' The true an- 
swer must be, that as soon as congress assumed powers and passed 
measures, which were in their nature national, to that extent the 
people, from whose acquiescence and consent they took effect, must 
be considered as agreeing to form a nation.* The congress of 
1774, looking at the general terms of the commissions, under 
which the delegates were appointed, seem to have possessed the 
power of concerting such measures, as they deemed best, to re- 
dress the grievances, and preserve the rights and liberties of all the 
colonies. Their duties seem to have been principally of an adviso- 
ry nature ; but the exigencies of the times led them rather to fol- 
low out the wishes and objects of their constituents, than scrupu- 
lously to examine the words, in which their authority was commu- 
nicated. t The congress of 1775 and 1776 were clothed with more 
ample powers, and the language of their commissions generally 
was sufRciently broad to embrace the right to pass measures of a 
national character and obligation. The caution necessary at that 
period of the revolutionary struggle rendered that language more 
guarded, than the objects really in view would justify ; but it was 
foreseen, that the spirit of the people would eagerly second every 
measure adopted to further a general union and resistance against 
the British claims. The congress of 1775 accordingly assumed at 
once (as we have seen) the exercise of some of the highest func- 
tions of sovereignty. They took measures for national defence 
and resistance ; they followed up the prohibitions upon trade and 
intercourse with Great Britain ; they raised a national army and 
navy, and authorized limited national hostilities against Great Bri- 
tain ; they raised money, emitted bills of credit, and contracted 
debts upon national account ; they established a national post of- 
fice ; and finally they authorized captures and condemnation of 
prizes in prize courts, with a reserve of appellate jurisdiction to 
themselves. 

§ 214. The same body, in 1776, took bolder steps, and exerted 
powers, which could in no other manner be justified or accounted 
for, than upon the supposition, that a national union for national 
purposes already existed, and that the congress was invested with 
sovereign power over all the colonies for the purpose of preserving 
the common rights and liberties of all. They accordingly autho- 
rized general hostilities against the persons and property of British 

* 3 Dall. R. 80, 81, 90, 91, 109, 110, 111, 117. 
t 3 Ball. R.91. 



40 LECTURES ON 

the congress was in fact not national but federative in its 
character. But this is placed beyond all reasonable question 
by two considerations, to neither of which has the learned 
author thought fit to advert. 

subjects; they opened an extensive commerce with foreign coun- 
tries, regulating the vsrhole subject of imports and exports ; they 
authorized the formation of new governments in the colonies ; and 
finally they exercised the sovereign prerogative of dissolving the 
allegiance of all colonies to the British crown. The validity of 
these acts was never doubted, or denied by the people. On the 
contrary, they became the foundation, upon which the superstruc- 
ture of the liberties and independence of the United States has 
been erected. Whatever, then, may be the theories of ingenious 
men on the subject, it is historically true, that before the declara- 
tion of independence these colonies were not, in any absolute sense, 
sovereign states ; that that event did not find them or make them 
such ; but that at the moment of their separation they were under 
the dominion of a superior controlling national government, whose 
powers were vested in and exercised by the general congress with 
the consent of the people of all the states.* 

§ 215. From the moment of the declaration of independence, if 
not for most purposes at an antecedent period, the united colonies 
must be considered as being a nation de facto, having a general 
government over it created, and acting by the general consent of 
the people of all the colonies. The powers of that government 
were not, and indeed could not be well defined. But still its ex- 
clusive sovereignty, in many cases, was firmly established; and 
its controlling power over the states was in most, if not in all na- 
tional measures, universally admitted.! Tlie articles of confede- 
ration, of which we shall have occasion to speak more hereafter, 
were not prepared or adopted by congress until November 1777 ;t 
they were not signed or ratified by any of the states until July 
1778; and they were not ratified, so as to become obligatory upon 
all the states, until March ]781. In the intermediate time, con- 

* This whole subject is very amply discussed by Mr. D.ine in his Appendix to 
the 9th volume of his Abridgement of the Laws ; and many of his views coin- 
cide with those stated in the test. The whole of that Appendix is worthy of 
the perusal of every constitutional lawyer, even though he might differ from 
some of the conclusions of the learned author. He will there find much rea- 
soning from documentary evidence of a public nature, which has not hitherto 
been presented in a condensed or accurate shape. 

Some interesting views of this subject are also presented in president Mon- 
roe's message on internal improvements, on the 4th of May 1892, appended to 
his message respecting the Cumberland road. See, especiallj^, pages 8 and 9. 

Whel} Mr. chief justice Marshall, in Ogden v. Gibbons, (9 Wheat. R. 187,) 
admits, |that the states, before the formation of the constitution, were sovereign 
and independent, and were connected with each other only by a league, it is 
manifest, that he uses tlie word " sovereign" in a very restricted sense. Under 
tlie confederation theie were many limitations upon the powers of the states. 

t See Penhallow v. Doane, 3 Dall. R. 54 ; Ware v. Hylton, 3 Dall. 199, per Chase 
J. Seethe Circular Letter of Congress, 13th September 1779 ; 5 Jour. Cong. 
341, 348, 349. 

X Jour, of Cong. 1777, p. 502. 



CONSTITUTIONAL LAW. 41 

In the first place, it is an historical fact that these very 
conventions, which in some of the states elected members 
to the congress of 1774, constituted at that time the legis- 

gress continued to exercise the powers of a general government, 
whose acts were binding on all the states. And though they con- 
stantly admitted the states to be " sovereign and independent com- 
munities;"* yet it must be obvious, that the terms were used in 
the subordinate and limited sense already alluded to; for it was 
impossible to use them in any other sense, since a majority of the 
states could by their public acts in congress control and bind the 
minority. Among the exclusive powers exercised by congress, 
were the power to declare war and make peace ; to authorize cap- 
tures; to institute appellate prize courts; to direct and control all 
national, military, and naval operations ; to form alliances, and 
make treaties; to contract debts, and issue bills of credit upon na- 
tional account. In respect to foreign governments, we were poli- 
tically known as the United States only ; and it was in our national 
capacity, as such, that we sent and received ambassadors, entered 
into treaties and alliances, and were admitted into the general 
community of nations, who might exercise the right of bellige- 
rents, and claim an equality of sovereign powers and prerogatives.! 
§ 216. In confirmation of these views, it may not be without 
use to refer to the opinions of some of our most eminent judges, 
delivered on occasions, which required an exact examination of 
the subject. In Chishoim s Executors v. The State of Georgia^ (2 
Dall. 419, 470, t) Mr. chief justice Jay, who was equally distin- 
guished as a revolutionary statesman and a general jurist, express- 
ed himself to the following effect : " The revolution, or rather the 
declaration of independence, found the people already united for 
general purposes, and at the same time providing for their more do- 
mestic concerns by state conventions, and other temporary arrange- 
ments. From the crown of Great Britian the sovereignty of their 
country passed to the people of it; and it was then not an uncom- 
mon opinion, that the unappropriated lands, which belonged to 
that crown, passed, not to the people of the colony or states, with- 
in whose limits they were situated, but to the whole people. On 
whatever principle this opinion rested, it did not give way to the 
other; and thirteen sovereignties were considered as emerging from 
the principles of the revolution, combined by local convenience 
and considerations. The people, nevertheless, continued to consi- 
der themselves, in a national point of view, as one people; and 
they continued without interruption to manage their national con- 
cerns accordingly." In PenhaUowv. Doane, (3 Dall. R. 54, ||) Mr. 
justice Patterson (who was also a revolutionary statesman) said, 
speaking of the period before the ratification of the confederation : 

*See Letter of 17th Nov. 1777, by Congress, recommending the articles of 
confederation ; Journal of 1777, p. 513, 514. 

t 1 Amer. Museum, 15 ; 1 Kent. Comm. 197, 198, 199. 
j S. C. 1 Peters 's Cond. R. 635. 
II S. C. 1 Peters's Cond. Rep. 21. 

4* 



42 LECTURES ON 

lative bodies of the respective states. They had been sub- 
stituted for the legislatures appointed under the crown, and 
passed laws of a municipal nature as well as of a political 

" The powers of congress were revolutionary in their nature, aris- 
ing out of events adequate to every national emergency, and co- 
extensive with the object to be attained. Congress was the gene- 
ral, supreme, and controlling council of the nation, the centre of 
the union, the centre of force, and the sun of the political system. 
Congress raised armies, fitted out a navy, and prescribed rules for 
their government, &c. &c. These high acts of sovereignty were 
submitted to, acquiesced in, and approved of by the people of Ame- 
rica, &c. &c. The danger being imminent and common, it be- 
came necessary for the people or colonies to coalesce and act in 
concert, in order to divert, or break the violence of the gathering 
storm. They accordingly grew into union, and formed one great 
political body, of which congress was the directing principle and 
soul, &c. &c. The truth is, that the states, individually, were not 
known, nor recognized as sovereign by foreign nations, nor are 
they now. The states collectively under congress, as their con- 
necting point or head, were acknowledged by foreign powers, as 
sovereign, particularly in that acceptation of the term, which is 
applicable to all great national concerns, and in the exercise of 
which other sovereigns would be more immediately interested. In 
IP'are v. Hylton, (3 Dall. 199,*) Mr. justice Chase (himself also a re- 
volutionary statesman) said : " It has been inquired, what powers 
congress possessed from the first meeting in September 1774, until 
the ratification of the confederation on the 1st of March 1781. It 
appears to me, that the powers of congress during that whole pe- 
riod were derived from the people they represented, expressly given 
through the medium of their state conventions or state legisla- 
tures ; or, that after they were exercised, they were impliedly ra- 
tified by the acquiescence and obedience of the people, &c. The 
powers of congress originated from necessity, and arose out of it, 
and were only limited by events; or, in other words, they were 
revolutionary in their nature. Their extent depended on the exi- 
gencies and necessities of public affairs. I entertain this general 
idea, that the several states retained all internal sovereignty; and 
that congress properly possessed the rights of external sovereignty. 
In deciding on the powers of congress, and of the several states 
before the confederation, I see but one safe rule, namely, that all 
the powers actually exercised by congress before that period were 
rightfully exercised, on the presumption not to be controverted, that 
they were so authorized by the people they represented, by an ex- 
press or implied grant ; and that all the powers exercised by the 
state conventions or state legislatures were also rightfully exercis- 
ed, on the same presumption of authority from the people. "t 

* S. C. 1 Peters's Cond. R. 99. 

t See also 1 Kent. Comm. Lect. 10, p. 196 ; President Monroe's Exposition 
and Message, 4th of May 1822, p. 8, 9, 10, 11. 



CONSTITUTIONAL LAW". 43 

character. They were as much the government de facto, 
then, as the legislature at ordinary periods, and in the ap- 
pointment of delegates to congress, they no more acted in 
virtue of original powers, derived from the people, than the 
ordinary legislature in ordinary times. They constituted, 
indeed, the legislature for those extraordinary times; for the 
interregnum ; for the revolutionary struggle. The appoint- 
ment of members of congress by them was therefore no 
more the direct action of the people, as contradistinguished 
from the government, than that appointment by the legis- 
latures in other states. Still less was any such appoint- 
ment the act of the people in a national character, as one 
people, as contradistinguished from their act in their dis- 
tinct political characters, as independent states. This 
brings me to observe, 

Secondly, that on the question whether the appointment 
of members of congress was an act of the people, as con- 
stituting one nation or not, it is utterly unimportant whe- 
ther it was made by legislature or convention, — by the re- 
presentatives of the people, or even by the people them- 
selves in plenis commitiis. Justice Story tells us they were 
acting " in their primary sovereign capacity, and with- 

§ 217. In respect to the powers of the continental congress exer- 
cised before the adoption of the articles of confederation, few ques- 
tions were judicialy discussed during the revolutionary contest; 
for men had not leisure in the heat of war nicely to scrutinize or 
weigh such subjects ; inter arma silent leges. The people, re- 
lying on the wisdom and patriotism of congress, silently acqui- 
esced in whatever authority they assumed. But soon after the or- 
ganization of the present government, the question was most ela- 
borately discussed before the supreme court of the United States, in 
a case calling for an exposition of the appellate jurisdiction of con- 
gress in prize causes before the ratification of the confederation.* 
The result of that examination was, as the opinions already cited 
indicate, that congress, before the confederation, possessed, by the 
consent of the people of the United States, sovereign and supreme 
powers for national purposes ; and among others, the supreme 
powers of peace and war, and, as an incident, the right of enter- 
taining appeals in the last resort in prize causes, even in opposition 
to state legislation. And that the actual powers exercised by con- 
gress, in respect to national objects, furnished the best exposition 
of its constitutional authority, since they emanated from the re- 
presentatives of the people, and were acquiesced in by the people. 

*Penhallow v. Doane, 3 Dall. 54, 80, 83, 90, 91, 94, 109, 110, 111, 119, 117; 
Journals of Congress, March 1779, p. 86 to 88 ; 1 Kent. Comm. 198, 199. 



44 LECTURES ON 

out the intervention of the ordinary functionaries." Ad- 
mit it. But in what sovereign capacity ? In the capacity 
of one people, composing one political society, and one 
sovereignty throughout British America, or as separate 
people of distinct political societies, uniting together as 
such for common defence and the maintenance of rights 
which were common to them all ? This is the true issue, 
and history leaves no doubt how it should be decided. The 
colonies had always been independent of each other, though 
subject to the crown. The king was the only knot which 
bound them together. Did the cutting off the common 
head unite them into one body ? Did cutting the knot have 
the effect of binding them more closely instead of leaving, 
to each, entire sovereignty and independence, except so far 
as it might be voluntarily vested in a common agent, the con- 
gress of the United States 1 Surely not. By cutting the only 
bond which served to hold them together, they became se- 
parate and independent states. Their rebellion was not as 
one people, but as thirteen states. They were not bound 
to rebel together ; for Canada, which stood in the same 
position with themselves, never did rebel, and the thirteen 
states had no right to compel her to do so. (6) We can 
look upon them as acting in no other manner than as com- 
munities distinct and independent of each other, each re- 
solving for itself, judging for itself, acting for itself And 
so they looked upon themselves. They were commanded 
by no authority to assemble in congress. The measure 
was simply recommended by one of the sister states. The 
members were appointed in each state according to its own 

(b) "When the obnoxious acts passed," says judge Iredell, 3 
Dall. 92, " if the people in each province had chosen to resist ^e- 
parately, they undoubtedly had equal right to do so as to join in 
general measures of resistance with the people of the other pro- 
vinces, however unwise and destructive such a policy might and 
undoubtedly would have been." — "If congress previously to the 
articles of confederation possesed any authority, it was an authori- 
ty derived from the people of each province in the first instance." 
" I conclude, therefore, that every particle of authority which ori- 
ginally resided either in congress, or in any branch of the state go- 
vernments, was derived from the people of each province : that this 
authority was conveyed by each body politic separately, and not by 
all the people in the several provinces or states jointly, and of 
course that no authority could be conveyed to the whole but that 
which previously was possessed by the several parts," &c. 



CONSTITUTIONAL LAW. 45 

pleasure, under its own electoral regulations, and with pow- 
ers and discretion prescribed by each, and were, moreover, 
liable to recall. The members when elected voted by 
states ;(c) giving to the smallest state in the Union the same 
weight in the deliberations of the body with the largest. 
This is of itself conclusive of the character of the body, 
as representing, not one great people, but thirteen indepen- 
dent states, who thus united in action and in council for 
common benefit. But this is not all : — every thing in our re- / 
volutionary annals distinctly proves, that congress repre- 
sented states alone, and acted only upon states. Its wants 
were supplied by requisitions : its commissions were coun- 
tersigned by the states. It powers were at first little more 
than advisory, though the exigencies of the revolution 
compelled them on many occasions to extend them. 3 
Dall. 91. As soon as the provinces took up arms, each state 
stood of itself as rebel, or quasi sovereign : each in that 
character assumed upon itself to act ; each in that charac- 
ter might have treated and made peace. That character 
they held before a congress was appointed. In that cha- 
racter they stood when it was created. It was the creature 
of those who were de facto sovereign ; and all its powers 
were not only derivative, but derivative from bodies politic, 
or societies of people distinct and separate, in the assumed 
character of sovereign, during the convulsions of the time. 
Notwithstanding the existence, also, of the congress, the 
states exercised every attribute of sovereignty. Among the 
memorable instances of this was tjie act of this venerable 
commonwealth, the common mother of us all, in declaring 
herself independent anterior to the 4th of July 1776, and 
before that measure had been adopted by the thirteen states 
in congress assembled. Such was assuredly the effect of 
the resolutions of the Virginia convention on the 15th day 
of May 1776. By those resolutions it was distinctly de- 
clared, that " there was no alternative left but abject sub- 
mission or total separation ;" it was therefore recommend- 
ed to congress to make a general declaration of indepen- 
dence for all the states, and a committee was appointed to 
prepare a declaration of rights and apian of government; 
all of which was equivalent to an assertion by the state of 

(c) 1 Story, § 202. 



46 LECTURES ON 

her right to self-government, and to take her stand as an 
independent power among the nations of the earth. And 
so the ablest minds have ever regarded it. Postponing for 
a while, a quotation from judge Upshur's Review of a most 
interesting passage upon this subject, I shall here offer the 
vigorous remarks of a very able judge in support of my 
positions. They were delivered in the celebrated case of 
Ware v. Hylton, 3 Dall. 199. In that case, it is said by Mr. 
Marshall, (afterwards chief justice of the United States,) 
that it had been conceded in the argument that Virginia in 
1777 was an independent state, and as such, competent to 
pass confiscation laws. In delivering his opinion in the 
case, judge Chase declares the right of confiscation (which 
is di jus belli, belonging to the sovereign alone,) to have 
resided only in the legislature of Virginia in relation to the 
claims of her enemy's people within her territories. He 
then proceeds : " It is w^orthy of remembrance, that dele- 
gates and representatives were elected by the people of the 
several counties and corporations of Virginia, to meet in 
general convention, for the purpose of framing a new go- 
vernment, by the authority of the people only ; and that the 
said convention met on the 6th of May, and continued in 
session until the 5th of July 1776; and, in virtue of their 
delegated power, established a constitution, or form of go- 
vernment, to regulate and determine by whom, and in what 
manner, the authority of the people of Virginia was there- 
after to be executed. As the people of that country were 
the genuine source and. fountain of all power, that could 
be rightfully exercised within its limits; they had there- 
fore an unquestionable right to grant it to whom they 
pleased, and under what restrictions or limitations they 
thought proper. The people of Virginia, by their con- 
stitution or fundamental law, granted and delegated all 
their supreme civil power to a legislature, an executive and 
?L judiciary ; The first to make ; the second to execute ; and 
the last to declare or expound, the laws of the common- 
wealth. This abolition of the old government, and this 
establishment of a new one, was the highest act of power 
that any people can exercise. From the moment the peo- 
ple of Virginia exercised this power, all dependence on, 
and connexion with. Great Britain, absolutely and forever 
ceased ; and no formal declaration of independence was 



CONSTITUTIONAL LAW. 47 

necessary, although a decent respect for the opinions of 
mankind required a declaration of the causes, which im- 
pelled the separation; and was proper to give notice of the 
event to the nations of Europe. I hold it as unquestiona- 
ble, that the legislature of Virginia, established as I have 
stated by the authority of the people, was forever thereaf- 
ter invested with the supreme and sovereign poioer of the 
state, and with authority to make any laws in their discre- 
tion, to affect the lives, liberties and property of all the 
citizens of that commonwealth, with this exception only, 
that such laws should not be repugnant to the constitution 
or fundamental law, which could be subject only to the 
control of the body of the nation, in cases not to be de- 
fined, and which loill ahoays provide for themselves. The 
legislative power of every nation can only be restrained by 
its oivn constitution : and it is the duty of its courts of jus- 
tice not to question the validity of any law made in pur- 
suance of the constitution. There is no question but the 
act of the Virginia legislature (of the 20th of October 
1777) was within the authority granted to them by the peo- 
ple of that country ; and this being admitted, it is a neces- 
sary result, that the law is obligatory on the courts of Vir- 
ginia, and, in my opinion, on the courts of the United 
States. If Virginia, as a sovereign state, violated the an- 
cient or modern law of nations, in making the law of the 
20th of October 1777, she was answerable in her political 
capacity to the British nation, whose subjects have been 
injured in consequence of that law. Suppose a general 
right to confiscate British property, is admitted to be in 
congress, and congress had confiscated all British property 
within the United States, including private debts, would it 
be permitted to contend in any court of the United States, 
that congress had no power to confiscate such debts, by 
the modern law of nations? If the right is conceded to 
be in congress, it necessarily follows, that she is the judge 
of the exercise of the right, as to the extent, mode and man- 
ner. The same reasoning is strictly applicable to Virgi- 
nia, if considered a sovereign nation ; provided she had 
not delegated such power to congress, before the making 
of the law of October 1777, which I will hereafter consi- 
der. 



4S LECTUEES ON 

" In June 1776, the convention of Virginia formally de- 
clared, that Virginia was a free, sovereign and independent 
state; and on the 4th of July 1776, following, the Uni- 
ted States in congress assembled, declared the thirteen 
united colonies free and independent states ; and that as 
such, they had full power to levy war, conclude peace, &c. 
I consider this as a declaration, not that the united colonies 
jointly, in a collective capacity, were independent states, 
&c., but that each of them was a sovereign and indepen- 
dent state ; that is, that each of them had a right to govern 
itself by its own authority, and its own laws, without any 
control from any other power upon earth. 

" Before these solemn acts of separation from the crown 
of Great Britain, the war between Great Britian and the 
united colonies, jointly and separately , was a civil war ; 
but instantly, on that great and ever memorable event, the 
war changed its nature, and became a public war between 
independent governments ; and immediately thereupon all 
the rights of public war (and all the other rights of an in- 
dependent nation) attached to the government of Virginia ; 
and all the former political connexion between Great Bri- 
tian and Virginia, and also between their respective sub- 
jects, were totally dissolved ; and not only the tivo nations, 
but all the subjects of each, were in a state of war ; pre- 
cisely as in the present war between Great Britain and 
France. Vatt. Lib. 3, c. 18, s. 292 to 295; lib. 3, c. 5, 
s. 70, 72 and 73. 

" From the 4th of July 1776, the American states were 
de facto, as well as de jure, in the possession and actual 
exercise of all the rights of independent governments. 
On the 6th of February 1778, the king of France entered 
into a treaty of alliance with the United States ; and on 
the 8th of October 1782, a treaty of amity and commerce 
was concluded between the United States and the states 
general of the United Provinces. I have ever considered 
it as the established doctrine of the United States, that their 
independence originated from, and commenced with, the 
declaration of congress, on the 4th of July 1776; and that 
no other pei'iod can be fixed on for its commencement ; and 
that all laws made by the legislatures of the several states, 
after the declaration of independence, were the laws of 
sovereign and independent governnq^ents." 



CONSTITUTIONAL LAW. 49 

To these remarks of judge Chase, it may be added that 
in Penhalloio v. Doane,{d) judge Iredell very clearly sus- 
tains the same positions, contending that the jus belli be- 
longed at first to the states as sovereign, and was not pos- 
sessed by congress unless given by all the states. 

Notwithstanding these strong judicial opinions, and the 
historical facts on which they rest, we find Mr. Story re- 
iterating the remark " that antecedent to the declaration of 
independence, none of the colonies pretended to be sove- 
reign states in the sense in which the term sovereign is 
sometimes applied to states :" and again, " before the re- 
volution none were independent or sovereign communi- 
ties;" and again, "from the moment of the declaration of 
independence, if not for most purposes, at an antecedent 
period, the United Colonies must be considered as a nation 
de facto, having a general government over it created, and 
acting by the general consent of the people of all the 
colonies;" obviously meaning as one nation. And again, 
" Before the declaration of independence the colonies 
were not, in any absolute sense, sovereign states. That 
event did not find or make them such ; but at the moment 
of separation, (e) they were under the dominion of a supe- 
rior controlling national government, whose powers were 
vested in and exercised by the general congress with the 
consent of the people of all the states ;" meaning obviously 
as one people. 

These opinions are utterly at war with the first principles 
of our federal government, as they have been received and 
handed down to us by the wisest and purest statesmen of 
both parties. According to these views, the states never have 
been sovereign and independent ! According to these 
views, " at the moment of the separation of the colonies 
from Great Britain, they were under the dominion of a su- 
perior controlling national government{f) ivhose poicers 

(<i)3Dall.92, 93, 94. 

(e) " From the crown of Great Britain the sovereignty of this 
counti'y passed to the people of it," says chief justice Jay very 
truly. But to what people .'' Not to the whole people of the Uni- 
ted States as one people, for there was none such, but to the people 
of the respective states. See post. 

(f) Anterior to the declaration of independence the states still 
recognized the supremacy of England, and still looked to her as 
their sovereign. Congress was in no sense a sovereign or a go- 

5 



50 LECTURES ON 

were vested in and exercised by the general congress with 
the consent of the people of all the states!!!" The 
states then are not the fountains of power ; they are not 
the grantors, but the grantees ; not the dispensers, but the 
recipients ; and as a fair corollary, from these positions, all 
powers not granted to the states, are reserved to the gene- 
ral government ! ! ! 

It is obvious that these startling principles should be 
carefully examined before they are adopted. However 
great the name under which they are put forth, it is not 
greater than those of the wise and good who have gone 
before him, who have ever looked upon the states as great 
political bodies, endued with all the attributes of sove- 
reignty, and the source from whence the general govern- 
ment of the Union draws all its powers. 

Let us then first examine the position that at the mo- 
ment of the separation, in other words, at the date of the 
declaration of independence, "the colonies were under 
the dominion of a superior controlling national government, 
whose powers were vested in and exercised by the general 
congress with the consent of the people of all the states." 

I have already sufficiently shewn that under British do- 
mination, the colonies, though subject to the crown, were 
independent of each other; and that the cutting the only 
bond which in any manner connected them, could not have 
the effect of binding them more closely than they had been 
bound before under their common head. Its obvious ef- 
fect, on the contrary, was to separate entirely the thirteen 
distinct political societies, until by some act of their own 
they should form a connexion, more or less close, accord- 
ing to their pleasure. If this was so, it implies the exis- 
tence of sovereignty in each from the moment of separa- 
tion. Judge Story quotes Ch. justice Jay, who says that 

vernment, but the great organ of a revolution, whose termination 
was yet hidden from mortal ken. The war was, until July 4, 1776, 
a civil war, and congress was not looked upon by foreign powers 
as competent to be treated with until that date, nor did the states 
indeed consider themselves as individually or collectively consti- 
tuting a nation. At the moment of the declaration each state 
emerged into sovereignty and independence, and from that mo- 
ment till the confederation congress was their organ, and had no 
legitimate authority but that which their commissions gave to the 
delegates of each. 



CONSTITUTIONAL LAW. 51 

from the crown of Great Britain the sovereignty of this 
country passed to the people of it. And this is true when 
properly understood. A revolting colony in throwing off 
the authority of the mother country, becomes itself in- 
vested with the attributes of sovereignty. Each of the 
thirteen revolting colonies, therefore, in throwing off the 
authority of Great Britain became itself a sovereign. The 
crown had the sovereignty over each, but as they were 
communities independent of each other, the sovereignty 
when thrown off passed to the people of each, and not to 
the people of the whole, for they never had constituted one 
whole. The whole continent was not our country. Virgi- 
nia was our country, and the government of Virginia passed 
of course to the people of Virginia, and, accordingly, in 
this same passage we find chief justice Jay admitting that 
" thirteen sovereigns were considered as emerging from 
the principles of the revolution, combined by local conve- 
nience and considerations." They were indeed combined, 
but combined as states or sovereigns, investing in a gene- 
ral congress formed by their respective delegates (repre- 
senting them as states) a government for the conduct of 
their combined interests amid the throes of a revolution. 
What was the character of this government, of this na- 
tional authority, vested in the general congress? First, in 
regard to its formation, was it national or confederate? 
The answer is easy ; it was confederate as far as it was a go- 
vernment at all. The delegates were appointed by the states, 
not by the people ; sometimes, indeed, by conventions, but 
they were conventions, who as much represented the state 
as the legislatures could do. Moreover, in the delibera- 
tions of congress they voted by states, the smallest having 
equal weight with the largest; a test of confederate cha- 
racter which has been universally admitted. Moreover, 
each delegation obeyed its own state ; each was removable 
by its own state, so that the congress partook in no small 
degree of the character of a congress of ambassadors. 
But, secondly, this general congress, (if government it 
could be called) was merely revolutionary. It grew up out of 
the necessities of the times. It was not constituted or es- 
tablished as a government. It was assembled upon re- 
commendation merely, which no state was bound to obey. 
It acted by recommendation mainly. It had no prescribed 



52 LECTURES ON 

authority. Its powers were not, and could not, well indeed 
be defined. It continued to exercise the powers of a ge- 
neral government, whose acts were respected and concur- 
red in by the states. It constantly admitted the states to 
be sovereign and independent communities. (1 Story, p. 
204.) It exercised its powers by a suferance growing out 
of the situation of the country, which had not yet been 
able to form any regular government; and the acquiescence 
of the states constituted its justification for the broad 
powers it often found itself compelled to exercise. Such 
were the powers of war and peace; of forming treaties and 
alliances ; authorizing captures ; establishing courts of 
prizes, &c. None of these were conferred, but they were 
exercised and acquiesced in, because the exigencies of the 
cause in which we were engaged in common, imperiously 
demanded it. Lastly, this revolutionary government was 
ephemeral. The withdrawal of the delegates would have 
dissolved it, and any state at pleasure might have with- 
drawn its own, and then it would have been no longer 
bound by the acts of congress. Moreover, being merely 
revolutionary, it may be considered as limited at farthest 
by the continuance of hostilities. Peace would have 
withered it forever, for it had grown only out of the ne- 
cessities of revolution and war. It lasted not indeed till 
peace. It was found but a rope of sand, and in June 1778 
the confederation was adopted by all the states except Ma- 
ryland and Delaware. Justly then has it been admitted 
by judge Story, that the union of the states, anterior to 
that time, " grew out of the exigencies of the times; and 
from its nature and objects might be deemed temporary, 
extending only to the maintenance of the common liber- 
ties and independence of the states, and to terminate with 
the return of peace with Great Britain and the accomplish- 
ment of the ends of the revolutionary contest." It was 
under this ephemeral government — this government of suf- 
ferance ; this government, the creature of their own will, 
and capable of being dissolved at a moment by their own 
breath, that the states are said to have been at the time of 
the separation. With what propriety could it be intimated 
by judge Story that they were " under the dominion of a 
superior controlling national governments^ at the time of 
the adoption of the declaration of independence ? 



CONSTITUTIONAL LAW. 53 

It is, indeed, most singular that judge Story should so 
obstinately contend for the existence of this superior con- 
trolling power, when he admits that the powers of con- 
gress were assumed in most instances, and only acquiesced 
in by the tacit consent of the states. Can this exercise of 
the powers of government by sufferance constitute sove- 
reignty or supreme controlling power? Were not the acts of 
congress, indeed, the acts of the states themselves through 
their own servants, their delegates? How could that be a 
controlling power over them, which was exerted hy them, 
and not by others having authority over them. In other 
words, how could the delegates of the states, who were 
their servants, have supreme control over those who were 
confessedly their masters. Judge Story indeed contends 
that it was impossible to consider the states as sovereign, 
because the majority of the states could bind the minority. 
But when was it ever otherwise in any confederacy or 
union of states, however cautiously they may have guarded 
their sovereign powers ? In every confederacy that ever 
existed, whether formal or informal, this has been the case. 
Yet who ever dreamed that the sovereignty of the states 
was swallowed up in their confederacy 1 That sovereignty 
is essential to its existence. It may, indeed, invest the ex- 
ercise of certain powers in a congress of ambassadors or 
delegates, but the sovereignty itself is unimpaired, since 
the power which is given is vicarious, and but the emana- 
tion of its own free will. Thus it is even under our con- 
stitution which has so many features of nationality, judge 
Story himself acknowledges the states to be still sove- 
reign, (§•) notwithstanding the national character he attri- 
butes to the constitution. And thus it was, too, under the 
confederation. The second section of the articles ex- 
pressly declares the sovereignty and independence of each 
of the states ; and yet in all its action a minority of states 
was bound by the decision of a majority. It is then no 
proof of the loss of their sovereignty that each state was 
bound by its own consent, by the decision of the majority 
of all the states in congress assembled. It was necessary 

(o-) In Martin v. Hunter, 1 Wheat. 304. 

5* 



54 LECTURES ON 

that the states should coalesce, (A) or act in concert, and 
this action could never have been expected had unanimity 
been made necessary. 

It is also often remarked, with an air of triumph, that 
during the revolutionary war, the states individually were 
not known nor recognized as sovereign by foreign nations. 
But the answer is plain : The states, collectively, under 
congress, as their connecting point or head, were acknow- 
ledged by foreign powers as sovereign, and treated with as 
such ; and the states, even under our present constitution, 
are acknowledged to be sovereign states, though they are 
not recognized by foreign nations in their intercourse as 
such. 

Judge Story, after quoting judges Patterson and Jay, 
proceeds to quote judge Chase in page 206, on this sub- 
ject of the sovereignty of the states, anterior to the final 
adoption of the articles of confederation ; but, unfortu- 
nately, he has omitted the most forcible passages in the 
opinion of that able judge, militating against the positions 
he himself so zealously maintains. This may be seen by 
comparing the opinion already cited, ante, pa. 46, with 
the extract in judge Story's work. " I consider," says 
judge Chase "the declaration of independence as a decla- 
ration, not that the United Colonies jointly, in a collective 
capacity, were independent states, hut that each of them 
was an independent state ; that is, that each of them 
had a right to govern itself by its own authority, and its 
own laws, without any control from any other poicer upon 
earth." 

It seems to me not unworthy of remark, that the learned 
commentator, in the frequent use of the term " union," 
seems never to have duly adverted to its only legitimate use 
in its application to political societies. He speaks fami- 
liarly of the union existing anterior to the declaration of 
independence. He says, " the uriion might be deemed 
temporary, extending only to the maintenance of common 
liberty and independence of the states." " Union !" What 
does it imply? Previous separation and disunion of parts? 
If so, then the proposition is surrendered as to the original 

(h) Per Patterson, justice. The idea of coalescing between po- 
litical bodies implies sovereignty in each, and admits they were, 
not coalesced before. 



CONSTITUTIONAL LAW. 55 

unity or oneness of the colonies. And of what was this 
union ? Was it of individuals or of political bodies ? If 
used in relation to the last, it is intelligible, but if applied 
to the former, it is entirely unrecognized by the political 
vocabulary. We speak of forming or dissolving a union 
in reference to states, but no one ever dreamed of calling 
a national government a union, or of breaking up the very 
foundations of society itself, when he speaks of dissolu- 
tion of an union. 

After thus presenting some of my own views on this in- 
teresting topic, I beg leave to add from the author before 
cited, his much more satisfactory refutation of the hereti- 
cal notion of the oneness of the colonies and of the states 
anterior to the declaration of independence : 

"In the execution of the second division of his plan, 
very little was required of the author either as a historian or 
as a commentator. Accordingly, he has alluded but slight- 
ly to the condition of the colonies, during the existence of 
the revolutionary government, and has sketched with great 
rapidity, yet sufficiently in detail, the rise, decline and fall 
of the confederation. Even here, however, he has fallen 
into some errors, and has ventured to express decisive and 
important opinions without due warrant. The desire to 
make ' the people of the United States' one consolidated 
nation, is so strong and predominant, that it breaks forth, 
often uncalled for, in every part of his work. He tells us 
that the first congress of the revolution was ' a general or 
national governm.ent ;' that it ' was organized under the 
auspices and with the consent of the people, acting directly 
in their primary, sovereign capacity, and without the inter- 
vention of the functionaries to whom the ordinary powers 
of government were delegated in the colonies.' He ac- 
knowledges that the powers of this congress were but ill- 
defined ; that many of them were exercised by mere usur- 
pation, and were acquiesced in by the people, only from 
the confidence reposed in the wisdom and patriotism of its 
members, and because there was no proper opportunity, 
during the pressure of the war, to raise nice questions of 
the powers of government. And yet he infers, from the 
exercise of powers thus ill-defined, and in great part, 
usurped, that ' from the moment of the declaration of in- 
dependence, if not for most purposes, at an antecedent pe- 



56 LECTURES ON 

riod, the united colonies must be considered as being a 
nation de facto, ^ &lc. 

" A very slight attention to the history of the times will 
place this subject in its true light. The colonies com- 
plained of oppressions from the mother country, and were 
anxious to devise some means by which their grievances 
might be redressed. These grievances were common to 
all of them ; for England made no discrimination between 
them, in the general course of her colonial policy. Their 
rights, as British subjects, had never been well defined; 
and some of the most important of those rights, as assert- 
ed by themselves, had been denied by the British crown. 
As early as 1765 a majority of the colonies had met to- 
crether in congress, or convention, in New York, for the 
purpose of deliberating on these grave matters of common 
concern ; and they then made a formal declaration of what 
they considered their rights, as colonists and British sub- 
jects. This measure, however, led to no redress of their 
grievances. On the contrary, the subsequent measures of 
the British government gave new and just causes of com- 
plaint ; so that, in 1774, it was deemed necessary that the 
colonies should again meet together, in order to consult 
upon their general condition, and provide for the safety of 
their common rights. Hence the congress which met at 
Carpenter's hall, in Philadelphia, on the 5th of September 
1774. It consisted of delegates from New Hampshire, 
Massachusetts Bay, Rhode Island and Providence Planta- 
tions, Connecticut, from the city and county of New York, 
and other counties in the province of New York, New Jer- 
sey, Pennsylvania, Newcastle, Kent and Sussex in Dela- 
ware, Maryland, Virginia and South Carolina. North Ca- 
rolina was not represented until the 14th September, and 
Georgia not at all. It is also apparent, that New York 
was not represented as a colony, but only through certain 
portions of her people ;(/) in like manner, Lyman Hall 

(i) The historical fact here stated, is perfectly authenticated, and 
has never been disputed ; nevertheless, the following extracts from 
the journals of congress, may not be out of place : 

" Wednesday, September 14, 1774. Henry Wisner, a delegate 
from the county of Orange, in the colony of New York, appeared 
at congress, and produced a certificate of his election hy the said 
county, which being read and approved, he took his seat in con- 
gress as a deputy from the colony of New York." 



CONSTITUTIONAL LAW. 57 

was admitted to his seat, in the succeeding congress, as a 
delegate from the parish of St. Johns, in Georgia, although 
he declined to vote on any question requiring a majority of 
the colonies to carry it, because he was not the representa- 
tive of a colony. This congress passed a variety of im- 
portant resolutions, between September 1 774, and the 22d 
October, in the same year ; during all which time Georgia 
was not represented at all ; for even the parish of St. 
Johns did not appoint a representative till May 1775. In 
point of fact, the congress was a deliberative and advisory 
body, and nothing more ; and, for this reason, it was not 
deemed important, or, at least, not indispensable, that all 
the colonies should be represented, since the resolutions of 
congress had no obligatory force whatever. It was appoint- 
ed for the sole purpose of taking into consideration the 
general condition of the colonies, and of devising and re- 
commending proper measures, for the security of their 
rights and interests. For these objects no precise powers 
and instructions were necessary, and beyond them none 
were given. Neither does it appear that any precise time 
was assigned for the duration of congress. The duty with 
which it was charged was extremely simple ; and it was 
taken for granted that it would dissolve itself as soon as 
that duty should be performed. (A;) 

" Monday, September 26, 1774. John Hening, Esq., a deputy 
from Orange county, in the colony of New York, appeared this 
morning, and took his seat as a deputy from that colony." 

" Saturday, October 1, 1774. Simon Bocrum, Esq., appeared in 
congress as a deputy from King's county, in the colony of New 
York, and produced the credentials of his election, which being 
read and approved, he took his seat as a delegate from that co- 
lony." 

It is evident from these extracts, that although the delegates 
from certain portions of the people of New York were admitted 
to seats in congress as delegates from the colony, yet, in point of 
fact, they were not elected as such, neither were they ever recog- 
nized as such, by New York herself. The truth is, as will pre- 
sently appear, the majority of her people were not ripe for the 
measures pursued by congress, and would not have agreed to ap- 
point delegates for the whole colony. 

{k) A reference to the credentials of the congress of 1774 will 
shew, beyond all doubt, the true character of that assembly. The 
following are extracts from them : 

New Hampshire. " To devise, consult and adopt such measures 
as may have the most likely tendency to extricate the colonies from 



58 LECTURES OX 

" It is perfectly apparent that the mere appoint?ne?it of 
this congress did not make the people of all the colonies 
' one people,' nor ' a nation de facto.' All the colonies 

their present difficulties; to secure and perpetuate their rights, 
liberties and privileges, and to restore that peace, harmony and 
mutual confidence, which once happily subsisted between the pa- 
rent country and her colonies." ^ 

Massachusetts. "To consult on the present state of the colo- 
nies, and the miseries to which they are, and must be reduced, by 
the operation of certain acts of parliament respecting America; 
and to deliberate and determine upon wise and proper measures 
to be by them rccomviended to all the colonies, for the recovery arid 
establishment of their just rights and liberties, civil and religious, 
and the restoration of union and harmony between Great Britain 
and the colonies, most ardently desired by all good men." 

Rhode Island. " To consult on proper measures to obtain a re- 
peal of the several acts of the British parliament for levying taxes 
on his majesty's subjects in America without their consent, and 
upon proper measures to establish the rights and liberties of the 
colonies upon a just and solid foundation, agreeably to instructions 
given by the general assembly." 

Connecticut. " To consult and advise on proper measures for 
advancing the best good of the colonies, and such conferences to 
report, from time to time, to the colonial house of representatives." 

j\ew York. Only a few of her counties were represented, some 
by deputies authorized to " represent," and some by deputies au- 
thorized to "attend congress." 

New Jersey. " To represent the colony in the general congress." 

Pennsylvania. " To form and adopt a plan for the purposes of 
obtaining redress of American grievances, ascertaining American 
rights upon the most solid and constitutional principles, and for 
establishing that union and harmony between Great Britain and 
the colonies which is indispensably necessary to the welfare and 
happiness of both." 

Delaware. " To consult and advise with the deputies from the 
other colonies, to determine upon all such prudent and lawful mea- 
sures as may be judged most expedient for the colonies immediately 
and unitedly to adopt, in order to obtain relief for an oppressed 
people,* and the redress of our general grievances." 

Maryland. " To attend a general congress, to effect one gene- 
ral plan of conduct, operating on the commercial connexion of the 
colonies with the mother country, for the relief of Bo.ston and the 
preservation of American liberty." 

Virginia. " To consider of the most proper and effectual man- 
ner of so operating on the commercial connexion of the colonies 
with the mother country, as to procure redress for the much in- 
jured province of Massachusetts Bay, to secure British America 

* Massachusetts, the particular wrongs of which are just before recited at 
large. 



CONSTITUTIONAL LAW. 59 

did not unite in the appointment, neither as colonies nor 
by any portion of their people acting in their primary as- 
semblies, as has already been shewn. The colonies were 

from the ravage and ruin of arbitrary taxes, and speedily to pro- 
cure the return of that harmony and union, so beneficial to the 
whole empire, and so ardently desired by all British America." 

North Carolina. " To take such measures as they may deem 
prudent to effect the purpose of describing with certainty the rights 
of Americans, repairing the breach made in those rights, and for 
guarding them for the future from any such violations done under 
the sanction of public authority." For these purposes the dele- 
gates are "invested with such powers as may make any acts done 
by them obligatory in honour, on every inhabitant hereof, who is 
not an alien to his country's good, and an apostate to the liberties 
of America." 

South Carolina. " To consider the acts lately passed, and bills 
depending in parliament with regard to the port of Boston and co- 
lony of Massachusetts Bay ; which acts and bills, in the precedent 
and consequences, affect the whole continent of America. Also 
the grievances under which America labours, by reason of the se- 
veral acts of parliament that impose taxes or duties for raising a 
revenue, and lay unnecessary restraints and burdens on trade ; and 
of the statutes, parliamentary acts and royal instructions, which 
make an invidious distinction between his majesty's subjects in 
Great Britain and America, with full power and authority to con- 
cert, agree to and prosecute such legal measures, as in the opinion 
of the said deputies, so to be assembled, shall be most likely to ob- 
tain a repeal of the said acts, and a redress of those grievances." 

[The above extracts are made from the credentials of the depu- 
ties of the several colonies, as spread upon the journal of congress, 
according to a copy of that journal bound (as appears by a gilt 
label on the back thereof) for the use of the president of congress ; 
now in possession of B. Tucker esq.] 

It is perfectly clear from these extracts, 1. That the colonies did 
not consider themselves as "one people," and that they were 
therefore bound to consider the quarrel of Boston as their own ; 
but that they made common cause with Massachusetts, only be- 
cause the principles asserted in regard to her, equally affected the 
other colonies. 2. That each colony appointed its own delegates, 
giving them precisely such power and authority as suited its own 
views. 3. That no colony gave any power or authority except for 
advisement only. 4. That so far from designing to establish "a 
general or national government," and to form themselves into "a 
nation de facto," their great purpose was to bring about a reconci- 
liation and harmony with the mother country. This is still farther 
apparent from the tone of the public addresses of congress. 5. That 
this congress was not " organized under the auspices and with the 
consent of the people, acting directly in their primary, sovereign 
capacity, and without the intervention of the functionaries to 
whom the ordinary powers of government were delegated in the 



60 LECTURES ON 

not independent, and had not even resolved to declare 
themselves so at any future time. On the contrary, they 
were extremely desirous to preserve and continue their 
connexion with the parent country, and congress was 
charged with the duty of devising such measures as would 
enable them to do so, without involving a surrender of 
their rights as British subjects. It is equally clear, that 
the powers with which congress was clothed, did not flow 
from, nor constitute ' one people,' or ' nation de facto,' 
and that that body was not ' a general or national govern- 
ment,' nor a government of any kind whatever. The ex- 
istence of such government was absolutely inconsistent 
with the allegiance which the colonies still acknowledged 
to the British crown. Our author himself informs us, in 
a passage already quoted, that they had no power to form 
such government, nor to enter into ' any league or treaty 
among themselves.' Indeed, congress did not claim any 
legislative power whatever, nor could it have done so con- 
sistently with the political relations which the colonies still 
acknowledged and desired to preserve. Its acts were in 
the form of resolutions, and not in the form of laios ; it 
recommended to its constituents whatever it believed to be 
for their advantage, but it commanded nothing. Each co- 
lony, and the people thereof, were at perfect liberty to act 
upon such recommendation or not, as they might think 
proper. (?) 

colonies," but, on the contrary, that it was organized by the colo- 
nies as such, and generally through their ordinary legislatures; 
and ahcays with careful regard to their separate and independent 
rights and powers. 

If the congress of 1774 was " a general or national govern- 
vernment," neither New York nor Georgia was a party it; for 
neither of them was represented in that congress. It is also wor- 
thy of remark that the congress of 1774 had no agents of its own 
in foreign countries, but employed those of the several colonies. 
See the resolution for delivering the address to the king, passed 
October 25, 1774, and tlie letter to the agents, approved on the fol- 
lowing day. 

(I) The journals of congress afford the most abundant and con- 
clusive proofs of this. In order to shew the general character of 
their proceedings, it is enough for me to refer to the following : 

On the 11th October 1774, it was "Resolved unanimously. 
That a memorial be prepared to the people of British America, 
stating to them the necessity of a firm, united and invariable ob- 



CONSTITUTIONAL LAW. 61 

"On the 22d October 1774, this congress dissolved it- 
self, having recommended to the several colonies to ap- 
point delegates to another congress, to be held in Phila- 
delphia in the following May. Accordingly delegates 
were chosen, as they had been chosen to the preceding 
congress, each colony and the people thereof acting for 
themselves, and by themselves ; and the delegates thus 
chosen were clothed with substantially the same powers, 
for precisely the same objects, as in the former congress. 
Indeed, it could not have been otherwise; for the relations 
of the colonies were still unchanged, and any measure es- 
tablishing ' a general or national government,' or uniting 
the colonies so as to constitute them ' a nation de facto,' 
would have been an act of open rebellion, and would have 

servation of the measures recomviended by the congress, as they 
tender the invaluable rights and liberties derived to them from the 
laws and constitution of their country." The memorial was ac- 
cordingly prepared, in conformity with the resolution. 

Congress having previously had under consideration the plan of 
an association for establishing non-importation &c. finally adopted 
it, October 20, 1774. After reciting their grievances, they say, 
" And, therefore, we do, for ourselves and the inhabitants of the 
several colonies whom we represent, firmly agree and associate, 
under the sacred tics of virtue, honour and love of our country, as 
follows." They then proceed to recommend a certain course of 
proceeding, such as non-importation and non-consumption of cer- 
tain British productions. They recommend the appointment of a 
committee in every county, city and town, to watch their fellow- 
citizens, in order to ascertain whether or not " any person within 
the limits of their appointment has violated this association;" and 
if they should find any such, it is their duty to report them, "to 
the end, that all such foes to the rights of British America may be 
publicly known, and universally contemned as the enemies of Ame- 
rican liberty ; and, thenceforth, we respectively loill break off all 
dealings with him or her." They also resolve that they will "have 
no trade, commerce, dealings or intercourse whatsoever, with any 
colony or province in North America, which shall not accede to, 
or which shall hereafter violate this association, but will hold them 
as unworthy of the rights of freemen, and as inimical to the liber- 
ties of their country." 

This looks very little like the legislation of the " general or na- 
tional government" of " a nation fZe /acZo." The most important 
measures of general concern are rested upon no stronger founda- 
tion than " the sacred ties of virtue, honour, and the love of our 
country," and have no higher sanction than public contempt and 
exclusion from the ordinary intercourse of society ! 

6 



62 LECTURES ON 

severed at once all the ties which bound them to the nno- 
ther country, and which they were still anxious to pre- 
serve. New York was represented in this congress pre- 
cisely as she had been in the former one, that is, by dele- 
gates chosen by a part of her people ; for the royal party 
was so strong in that colony, that it would have been im- 
possible to obtain from the legislature an expression of ap- 
probation of any measure of resistance to British autho- 
rity. The accession of Georgia to the general association 
was not made known till the 20th of July, and her dele- 
gates did not take their seats till the 13th of September. 
In the mean time congress had proceeded in the discharge 
of its duties, and some of its most important acts, and 
among the rest, the appointment of a commander-in-chief 
of their armies, were performed while those two colonies 
were unrepresented. Its acts, like those of the former 
congress, were in the form of resolution and recommen- 
dation ; for, as it still held out the hope of reconciliation 
with the parent country, it did not venture to assume the 
function of authoritative legislation. It continued to hold 
this attitude and to act in this mode till the 4th of July 
1776, when it declared that the colonies there represented 
(including New York, which had acceded after the battle 
of Lexington) were, and of right ought to be, free and in- 
dependent states, (w) 

(rw) That the powers granted to the delegates to the second con- 
o-ress were substantially the same with those granted to the dele- 
gates to the first, will appear from the following extracts from their 
credentials : 

New Hampshire. " To consent and agree to all measures which 
said congress shall deem necessary to obtain redress of American 
grievances." Delegates appointed by a convention. 

Massachusetts. " To concert, agree upon, direct and order" (in 
concert with the delegates of the other colonies) " such further 
measures as to them shall appear to be best calculated for the re- 
covery and establishment of American rights and liberties, and for 
restoring harmony between Great Britain and the colonies." De- 
legates appointed by provincial congress. 

Connecticut. "To join, consult and advise with the other co- 
lonies in British America, on proper measures for advancing the 
best good of the colonies." Delegates appointed by the colonial 
house of representatives. 

The colony of New York was not represented in this congress, 
but delegates were appointed by a convention of deputies from the 



CONSTITUTIONAL LAW. 63 

" It is to be remarked, that no new powers were con- 
ferred on congress after the declaration of independence. 
Strictly speaking, they had no authority to make that de- 
city and county of New York, the city and county of Albany, and 
the counties of Dutchess, Ulster, Orange, West Chester, King's, 
and Suffolk. They gave their delegates power to "concert and 
determine upon such measures as shall be judged most effectual 
for the preservation and re-establishment of American rights and 
privileges, and for the restoration of harmony between Great Bri- 
tain and the colonies." Queen's county approved of the proceed- 
ing. 

Pennsylvania. Simply to "attend the general congress." De- 
legates appointed by provincial assembly. 

New Jersey. " To attend the continental congress, and to re- 
port their proceedings to the next session of general assembly." 
Delegates appointed by the colonial assembl}'. 

Delaware. "To concert and agree upon such farther measures 
as shall appear to them best calculated for the accommodation of 
the unhappy differences between Great Britain and the colonies on 
a constitutional foundation, which the house most ardently wish 
for, and that they report their proceedings to the next session of 
general assembly." Delegates appointed by the assembly. 

Maryland. "To consent and agree to all measures which said 
congress shall deem necessary and effectual to obtain a redress of 
American grievances ; and this province bind themselves to exe- 
cute, to the utmost of their power, all resolutions which the said 
congress may adopt." Delegates appointed by convention, and 
subsequently approved by the general assembly. 

Virginia. ""To represent this colony in general congress, to be 
held &c." Delegates appointed by convention. 

North Carolina. " Such powers as may make any acts done by 
them, or any of them, or consent given in behalf of this province, 
obligatory in honour upon every inhabitant thereof." Delegates 
appointed by convention, and approved in general aissembly. 

South Carolina. " To concert, agree to, and effectually prose- 
cute such measures as, in the opinion of the said deputies and the 
deputies to be assembled, shall be most likely to obtain a redress 
of American grievances." Delegates appointed by provincial con- 
gress. 

In the copy of the journals of congress now before me, I do not 
find the credentials of the delegates from Rhode Island. They 
did not attend at the first meeting of congress, although they did 
at a subsequent period. Georgia was not represented in this con- 
gress until September 1775. On the 13th May 1775, Lyman Hall 
appeared as a delegate from the parish of St. John's, and he was 
admitted to his seat, "subject to such regulations, as the congress 
shall determine, relative to his voting." He was never regarded as 
the representative of Georgia, nor was that colony then considered 
as a party to the proceedings of congress. This is evident from 



64 LECTURES ON 

claration. They were not appointed for any such purpose, 
but precisely the reverse ; and although some of them 
were expressly authorized to agree to it, yet others were 
not. Indeed, we are informed by Mr. Jefferson, that the 
declaration was opposed by some of the firmest patriots of 
the body, and among the rest, by R. R. Livingston, Dick- 
enson, Wilson and E. Rutledge, on the ground that it was 
premature; that the people of New York, New Jersey, 
Maryland and Delaware, were not yet ripe for it, but 
would soon unite with the rest, if not indiscreetly urged. 
In venturing upon so bold a step, congress acted pre- 
cisely as they did in all other cases, in the name of the 
states whose representatives they were, and with a full re- 
liance that those states would confirm whatever they might 
do for the general good. They were, strictly, agents or 
ministers of independent states, acting each under the au- 
thority and instructions of his own state, and having no 
power whatever, except what those instructions conferred. 
The states themselves were not bound by the resolves of 
congress, except so far as they respectively authorized 
their own delegates to bind them. There was no original 
grant of powers to that body, except for deliberation and 
advisement; there was no constitution, no law, no agree- 
ment, to which they could refer, in order to ascertain th6 
extent of their powers. The members did not all act un- 
der the same instructions, nor with the same extent of au- 

the fact that, in the address to the inhabitants of Great Britain, 
they use the style, " The twelve United Colonies, by their dele- 
gates in congress, to the inhabitants of Great Britain," adopted on 
the 8th July 1775. On the 20th of that month, congress were no- 
tified that a convention of Georgia had appointed delegates to at- 
tend them, but none of them took their seats till the 13th of Sep- 
tember following. They were authorized "to do, transact, join, 
and concur with the several delegates from the other colonies and 
provinces upon this continent, on all such matters and things as 
shall appear eligible and fit, at this alarming time, for the preser- 
vation and defence of our rights and liberties, and for the restora- 
tion of harmony, upon constitutional principles, between Great 
Britain and America." 

Some of the colonies appointed their delegates only for limited 
times, at the expiration of which, they were replaced by others, 
hut without any material change in their powers. The delegates 
were, in all things, subject to the orders of their respective colo- 
nies. 



CONSTITUTIONAL LAW. 65 

thority. The different states gave different instructions, 
each according to its own views of right and policy, and 
without reference to any general scheme to which they 
were all bound to conform. Congress had in fact no power 
of government at all, nor had it that character of perma- 
nency which is implied in the idea of government. It 
could not pass an obligatory law, nor devise an obliga- 
tory sanction, by virtue of any inherent power in itself 
It was, as already remarked, precisely the same body after 
the declaration Ckf independence as before. As it was not 
then a government, and could not establish any new and 
valid relations between the colonies, so long as they ac- 
knowledged themselves dependencies of the British crown, 
they certainly could not do so after the declaration of in- 
dependence, without some new grant of power. The de- 
pendent colonies had then become independent states ; 
their political condition and relations were necessarily 
changed by that circumstance; the deliberative and advi- 
sory body, through whom they had consulted together as 
colonies, was functus officio; the authority which ap- 
pointed them had ceased to exist, or was superseded by a 
higher authority. Every thing which they did, after this 
period, and before the articles of confederation, was with- 
out any other right or authority than what was derived 
from the mere consent and acquiescence of the several 
states. In the ordinary business of that government dc 
facto, which the occasion had called into existence, they 
did whatever the public interest seemed to require, upon 
the secure reliance that their acts would be approved and 
confirmed. In other cases, however, they called for spe- 
cific grants of power ; and in such cases, each representa- 
tive applied to his own state alone, and not to any other 
state or people. Indeed, as they were called into existence 
by the colonies in 1775, and as they continued in existence 
without any new election or new grant of power, it is dif- 
ficult to perceive how they could form ' a general or na- 
tional government, organized by the people.' They were 
elected by subjects of the king of England; subjects who 
had no right, as they themselves admitted, to establish any 
government whatever ; and when those subjects became 
citizens of independent states, they gave no instructions 
to establish any such government. The government exer- 
6* 



66 LECTURES ON 

cised was, as already remarked, merely a government de 
facto, and no farther de jure than the subsequent approval 
of its acts by the several states made it so. 

" This brief review^ will enable us to determine how far 
the author is supported in the inferences he has drawn, in 
the passages last quoted. We have reason to regret that 
in these, as in many others, he has not been sufficiently 
specific, either in stating his proposition or in citing his 
proof. To what people does he allude, when he tells us 
that the ' first general or national governjpnent' was orga- 
nized 'by the people?' The first and every recommenda- 
tion to send deputies to a general congress was addressed 
to the colonies as such ; in the choice of those deputies 
each colony acted for itself, without mingling in any way 
with the people or government of any other colony ; and 
when the deputies met in congress, they voted on all ques- 
tions of public and general concern by colonies, each co- 
lony having one vote, whatever was its population or num- 
ber of deputies. If, then, this government was organized 
by ' the people' at all, it was clearly the people of the se- 
veral colonies, and not the joint people of all the colonies. 
And where is the author's warrant for the assertion, that 
they acted ' directly in their primary sovereign capacity, 
and without the intervention of the functionaries, to whom 
the ordinary powers of government were delegated in the 
colonies.' He is in most respects a close follower of Mar- 
shall, and he could scarcely have failed to see the follow- 
ing passage, which is found in a note in the 168th page of 
the second volume of the Life of Washington. Speaking 
of the congress of 1774, Marshall says : ' The members of 
this congress were generally elected by the authority of 
the colonial legislatures, but in some instances a different 
system had been pursued. In New Jersey and Maryland 
the elections were made by committees chosen in the seve- 
ral counties for that particular purpose ; and in New York, 
where the royal party was very strong, and where it is pro- 
bable that no legislative act, authorizing an election of 
members to represent that colony in congress, could have 
been obtained, the people themselves assembled in those 
places, where the spirit of opposition to the claims of par- 
liament prevailed, and elected deputies, who were readily 
received into congress.' Here the general rule is stated to 



CONSTITUTIONAL LAW. 67 

be, that the deputies were elected by the ' colonial legisla- 
tures,' and the instances in which the people acted ' di- 
rectly in their primary sovereign capacity, without the in- 
tervention of the ordinary functionaries of government,' 
are given as exceptions. And even in those cases, in which 
delegates were appointed by conventions of the people, it 
was deemed necessary in many instances, as we have alrea- 
dy seen, that the appointment should be approved and con- 
firmed by the ordinary legislature. As to New York, nei- 
ther her people nor her government had so far lost their 
attachment to the mother country as to concur in any 
measure of opposition until after the battle of Lexington, 
in April 1775; and the only representatives which New 
York had in the congress of 1774 were those of a compa- 
ratively small portion of her people. It is well known — 
and, indeed, the author himself so informs us — that the 
members of the congress of 1775 were elected substanti- 
ally as were those of the preceding congress ; so that there 
were very few of the colonies, in which the people per- 
formed that act in their ' primary sovereign capacity,' 
without the intervention of their constituted authorities. 
It is of little consequence, however, to the present enqui- 
ry, whether the deputies were chosen by the colonial legis- 
latures, as was done in most of the colonies, or by conven- 
tions, as was done in Georgia and some others, or by com- 
mittees appointed for the purpose, as was done in one or 
two instances, or by the people in primary assemblies, as 
was done in pca-t of New York. All these modes were re- 
sorted to, according as the one or the other appeared most 
convenient or proper in each particular case. But, which- 
ever mode was adopted, the members were chosen by each 
colony in and for itself, and were the representatives of 
i/iat colony alone, and not of any other colony, or any 
nation de facto or de jure. The assertion, therefore, that 
' the congress thus assembled exercised de facto and de 
jure a sovereign authority, not as the delegated agents of 
the governments de facto of the colonies, but in virtue of 
original powers derived from the people,' is, to say the least 
of it, vei't/ bold, in one who had undoubtedly explored all 
the sources of information upon the subject. Until the 
adoption of the articles of confederation congress had no 
' original powers,' except only for deliberation and advise- 



68 LECTURES ON 

ment, and claimed no ' sovereign authority' whatever. It 
was an occasional, and not a permanent body, or one renew- 
able from time to time. Although they did, in many in- 
stances, ' exercise de facto' a power of legislation to a cer- 
tain extent, yet they never held that power ' de jure,' by 
any grant from the colonies or the people ; and their acts 
became valid only by subsequent confirmation of them, 
and not because they had any delegated authority to per- 
form them. The whole history of the period proves this, 
and not a single instance can be cited to the contrary. The 
course of the revolutionary government throughout attests 
the fact, that, however the people may have occasionally 
acted, in pressing emergencies, without the intervention of 
the authorities of their respective colonial governments, 
they never lost sight of the fact that they were citizens of 
separate colonies, and never, even impliedly, surrendered 
that character, or acknowledged a different allegiance. In 
all the acts of congress, reference was had to the colonies, 
and never to the people. That body had no power to act 
directly upon the people, and could not execute its own 
resolves as to most purposes, except by the aid and inter- 
vention of the colonial authorities. Its measures were 
adopted by the votes of the colonies as such, and not by the 
rule of mere numerical majority, which prevails in every 
legislative assembly of an entire nation. This fact alone 
is decisive to prove, that the members were not the repre- 
sentatives of the people of all the colonies, for the judg- 
ment of each colony was pronounced by its own members 
only, and no others had any right to mingle in their deli- 
berations. What, then, was this ' sovereign authority V 
What was the nature, what the extent, of its ' original pow- 
ers?' From what 'people' were those powers derived? I 
look in vain for answers to these questions to any histori- 
cal record which has yet met my view, and have only to 
regret that the author has not directed me to better guides. 
•' The author's conclusion is not better sustained by the 
nature and extent of the powers exercised by the revolu- 
tionary government. It has already been stated, that no 
original powers of legislation were granted to the con- 
gresses of 1774 and 1775; and it is only from their acts 
that we can determine what powers they actually exer- 
cised. The circumstances under which they were called 



CONSTITUTIONAL LAW. 69 

into existence precluded the possibility of any precise 
limitations of their powers, even if it had been designed 
to clothe them with the functions of government. The co- 
lonies were suffering under common oppressions, and were 
threatened with common dangers, from the mother coun- 
try. The great object which they had in view was to pro- 
duce that concert of action among themselves which would 
best enable them to resist their common enemy, and best 
secure the safety and liberties of all. Great confidence 
must necessarily be reposed in public rulers under circum- 
stances of this sort. We may well suppose, therefore, that 
the revolutionary government exercised every power which 
appeared to be necessary for the successful prosecution of 
the great contest in which they were engaged ; and we 
may, with equal propriety, suppose that neither the people 
nor the colonial governments felt any disposition to scruti- 
nize very narrowly any measure which promised protection 
and safety to themselves. They knew that the government 
was temporary only ; that it was permitted only for a par- 
ticular and temporary object, and that they could at any 
time recall any and every power which it had assumed. It 
would be a violent and forced inference, from the powers 
of such an agency, (for it was not a government, although 
I have sometimes, for convenience, called it so,) however 
great they might be, to say that the people, or states, which 
established it, meant thereby to merge their distmctive cha- 
racter, to surrender all the rights and privileges which be- 
longed to them as separate communities, and to consolidate 
themselves into one nation. 

"In point of fact, however, there was nothing in the 
powers exercised by the revolutionary government, so far 
as they can be known from their acts, inconsistent with the 
perfect sovereignty and independence of the states. These 
were always admitted in terms, and were never denied in 
practice. So far as external relations were concerned, con- 
gress seems to have exercised every power of a supreme go- 
vernment. They assumed the right to ' declare war and 
to make peace ; to authorize captures ; to institute appel- 
late prize courts ; to direct and control all national, mili- 
tary and naval operations ; to form alliances and make 
treaties ; to contract debts and issue bills of credit on 
national account.' These powers were not 'exclusive,' 



70 LECTURES ON 

however, as our author supposes. On, the contrary, troops 
were raised, vessels of war were -&6immissioned, and va- 
rious military operations were conducted by the colonies, 
on their own separate means and authority. Ticonderoga 
was taken by the troops of Connecticut before the decla- 
ration of independence ; Massachusetts and Connecticut 
fitted out armed vessels to cruise against those of England, 
in October 1775 ; South Carolina soon followed their ex- 
ample. In 1776, New Hampshire authorized her execu- 
tive to issue letters of marque and reprisal. 

" These instances are selected out of many, as sufficient 
to shew that in the conduct of war congress possessed no 
' exclusive' power, and that the colonies (or states) retain- 
ed, and actually asserted, their own sovereign right and 
power as to that matter. And not as to that matter alone, 
for New Hampshire established post offices. The words 
of our author may, indeed, import that the power of con- 
gress over the subject of war was ' exclusive' only as to 
such military and naval operations as he considers nation- 
al, that is, such as were undertaken by the joint power of 
all the colonies; and if so, he is correct. But the comma 
after the word ' national' suggests a different interpretation. 
At all events, the facts which I have mentioned prove that 
congress exercised no power which was considered as 
abridging the absolute sovereignty and independence of 
the states. 

" Many of those powers which, for greater convenience, 
were entrusted exclusively to congress, could not be effec- 
tually exerted except by the aid of the state authorities. 
The troops required by congress were raised by the states, 
and the commissions of their officers were countersigned 
by the governors of the states. Congress were allowed to 
issue bills of credit, but they could not make them a legal 
tender, nor punish the counterfeiter of them. Neither 
could they bind the states to redeem them, nor raise by 
their own authority the necessary funds for that purpose. 
Congress received ambassadors and other public ministers, 
yet they had no power to extend to them that protection 
which they receive from the government of every sove- 
reign nation. A man by the name of De Longchamps 
entered the house of the French minister plenipotentiary 
in Philadelphia, and there threatened violence to the per- 



CONSTITUTIONAL LAW. 71 

son of Francis Barbe Marbois, secretary of the French le- 
gation, consul general of France, and consul for the state 
of Pennsylvania : he afterwards assaulted and beat him in 
the public street. For this offence, he was indicted and 
tried in the court of oyer and terminer of Philadelphia, 
and punished under its sentence. The case turned chiefly 
upon the law of nations, with reference to the protection 
which it secures to foreign ministers. A question was 
made, whether the authorities of Pennsylvania should not 
deliver up De Longchamps to the French government to 
be dealt with at their pleasure. It does not appear that 
the federal government was considered to possess any 
power over the subject, or that it was deemed proper to 
invoke its counsel or authority in any form. This case 
occurred in 1784, after the adoption of the articles of 
confederation ; but if the powers of the federal govern- 
ment were less under those articles than before, it only 
proves that, however great its previous powers may have 
been, they were held at the will of the states, and were 
actually recalled by the articles of confederation. Thus 
it appears that, in the important functions of raising an 
army, of providing a public revenue, of paying public 
debts, and giving security to the persons of foreign minis- 
ters, the boasted ' sovereignty' of the federal government 
was merely nominal, and owed its entire efficiency to the 
co-operation and aid of the state governments. Congress 
had no power to coerce those governments ; nor could it 
exercise any direct authority over their individual citizens. 
" Although the powers actually assumed and exercised 
by congress were certainly very great, they were not al- 
ways acquiesced in, or allowed, by the states. Thus, the 
power to lay an embargo was earnestly desired by them, 
but was denied by the states. And in order the more 
clearly to indicate that many of their powers were exercised 
merely by sufferance, and at the same time to lend a sanc- 
tion to their authority so far as they chose to allow it, it 
was deemed necessary, by at least one of the states, to pass 
laws indemnifying those who might act in obedience to the 
resolutions of that body.(w) 

(n) This was done by Pennsylvania. See 2 Dallas's Col. L. of 
Penn. 3. 



72 LECTURES ON 

" A conclusive proof, however, of the true relation 
which the colonies held to the revolutionary government, 
even in the opinion of congress itself, is furnished by their 
own journals. In June 1776, that body recommended the 
passing of laws for the punishment of treason ; and they 
declare that the crime shall be considered as committed 
against the colonies individually , and not against them all, 
as united or confederated together. This could scarcely 
have been so, if they had considered themselves ' a go- 
vernment de facto and de jure,' clothed with ' sovereign 
authority.' The author, however, is not satisfied to rest 
his opinion upon historical facts ; he seeks also to fortify 
himself by a judicial decision. He informs us that, 'soon 
after the organization of the present government, the ques- 
tion [of the powers of the continental congress] was most 
elaborately discussed before the supreme court of the Uni- 
ted States, in a case calling for an exposition of the ap- 
pellate jurisdiction of congress in prize causes, before the 
ratification of the confederation. The result of that ex- 
amination was, that congress before the confederation pos- 
sessed, by the consent of the people of the United States, 
sovereign and supreme powers for national purposes; and, 
among others, the supreme powers of peace and war, and, 
as an incident, the right of entertaining appeals in the last 
resort, in prize causes, even in opposition to state legisla- 
tion. And that the actual powers exercised by congress, 
in respect to national objects, furnished the best exposition 
of its constitutional authority, since they emanated from 
the people, and were acquiesced in by the people.' 

" There is in this passage great want of accuracy, and 
perhaps some want of candour. The author, as usual, ne- 
glects to cite the judicial decision to which he alludes, but 
it must be the case of Penhallow and others against Doane's 
administrators. (3 Dallas's Reports 54.) Congress, in 
November 1775, passed a resolution, recommending to the 
several colonies to establish prize courts, with a right of 
appeal from their decisions to congress. In 1776, New 
Hampshire accordingly passed a law upon the subject, by 
which an appeal to congress was allowed in cases of cap- 
ture by vessels in the service of the united colonies ; but 
where the capture was made by ' a vessel in the service of 
the united colonies and of any particular colony or person 



CONSTITUTIONAL LAW. 73 

together, the appeal was allowed to the superior court of 
New Hampshire. The brigantine Susanna was captured 
by a vessel owned and commanded by citizens of New 
Hampshire, and was duly condemned as prize by her own 
court of admiralty. An appeal was prayed to congress 
and denied ; and thereupon an appeal to the superior court 
of New Hampshire was prayed and allowed. From the de- 
cision of this court an appeal was taken to congress, in 
the mode prescribed by their resolution, and the case was 
disposed of by the court of appeals, appointed by congress 
to take cognizance of such cases. After the adoption of 
the present constitution and the organization of the judi- 
ciary system under it, a libel was filed in the district court 
of New Hampshire, to carry into effect the sentence of the 
court of appeals above mentioned. The cause being legally 
transferred to the circuit court, was decided there, and an 
appeal allowed to the supreme court. That court, in its 
decision, sustains the jurisdiction of the court of appeals 
established by congress. Mr. justice Paterson's opinion 
is founded mainly upon these grounds : That the powers 
actually exercised by congress ought to be considered as 
legitimate, because they were such as the occasion abso- 
lutely required, and were approved and acquiesced in by 
' the people ;' that the authority ultimately and finally to 
decide on all matters and questions touching the law of 
nations does reside and is vested in the sovereign supreme 
power of war and peace ;' that this power was lodged in 
the continental congress by the consent and acquiescence 
of 'the people;' that the legality of all captures on the 
high seas must be determined by the law of nations; that 
New Hampshire had committed herself upon this subject by 
voting in favour of the exercise of the same power by con- 
gress in the case of the brig Active ; that as the commis- 
sion, under which the capture in the case under considera- 
tion was made, was issued by congress, it resulted, of ne- 
cessity, that the validity of all captures made by virtue of 
that commission should be judged of by congress, or its con- 
stituted authority, because ' every one must be amenable to 
the authority under which he acts.' It is evident that this 
opinion, while it sustains the authority of congress in the 
particular case, does not prove its general supremacy, nor 
that the states had surrendered to it any part of their so- 
7 



74 LECTURES ON 

vereignty and independence. On the contrary, it affirms 
that the ' sovereign and supreme power of war and peace/ 
was assumed by congress, and that the exercise of it be- 
came legitimate, only because it was approved and acqui- 
esced in ; and that being thus legitimated, the appellate 
jurisdiction in prize cases followed as a necessary incident. 
All the powers, which Paterson contends for as exercised 
by congress, may well be conceded, without in the slightest 
degree affecting the question bef6re us ; they were as con- 
sistent with the character of a federative, as with that of a 
consolidated government. He does not tell us to what peo- 
ple he alludes, when he says that the powers exercised by 
congress were approved and ratified by ' the people.' He 
does not, in any part of his opinion, authorize the idea of 
the author, that ' congress possessed, before the confede- 
ration, by the consent of the people of United States,' so- 
vereign and supreme powers for national purposes.' On 
the contrary, as to one of those powers, he holds the oppo- 
site language ; and therefore it is fair to presume, that he 
intended to be so understood in regard to all the rest. This 
is his language : ' The authority exercised by congress, in 
granting commissions to privateers, v/as approved and rati- 
fied by the several colonies or states, because they received 
and filled up the commissions and bonds, and returned the 
latter to congress.' This approval and ratification alone ren- 
dered, in his opinion, the exercise of this, and other simi- 
lar powers assumed by congress, legitimate. 

" Judge Iredell, in delivering his opinion, goes much more 
fully into the examination of the powers of the revolutiona- 
ry government. He thinks that, as the power of peace 
and war was entrusted to congress, they held, as a neces- 
sary incident, the power to establish prize courts ; and that 
whatever powers they did in fact exercise, were acquiesced 
in and consented to, and, consequently legitimated and 
confirmed. But he leaves no room to doubt as to the 
source whence this confirmation was derived. After prov- 
ing that the several colonies were, to all intents and pur- 
poses, separate and distinct, and that they did not form 
' one people' in any sense of the term, he says, 'If con- 
gress, previous to the articles of confederation, possessed 
any authority, it was an authority, as I have shewn, derived 
from the people of each province, in the first instance.' 



CONSTITUTIONAL LAW. 75 

' The authority was not possessed by congress, unless given 
by all the states.' — ' I conclude, therefore, that every par- 
ticle of authority, which originally resided either in con- 
gress or in any branch of the state governments, was de- 
rived from the people who were permanent inhabitants of 
each province, in the first instance, and afterwards became 
citizens of each state ; that this authority was conveyed by 
each body politic separately, and not by all the people in 
the several provinces or states jointly.' No language could 
be stronger than this, to disaffirm the author's conclusion, 
that the powers exercised by congress were exercised ' by 
the consent of the people of the United States' Certainly 
Iredell did not think so. 

" The other two judges, Blair and Gushing, affirm the 
general propositions upon which Paterson and Iredell sus- 
tained the power of congress in the particular case, but 
lend no support to the idea of any such unity among the 
people of the several colonies or states, as our author sup- 
poses to have existed. Gushing, without formally discus- 
sing the question, expressly says that ' he has no doubt of 
the sovereignty of the states.' 

" This decision, then, merely affirms, what no one has 
ever thought of denying, that the revolutionary government 
exercised every power which the occasion required ; that, 
among these, the powers of peace and war were most im- 
portant, because congress, alone, represented all the colo- 
nies, and could, alone, express the general will, and wield 
the general strength ; that wherever the powers of peace 
and war are lodged, belongs also the right to decide all 
questions touching the laws of nations; that prize causes 
are of this character; and, finally, that all these powers 
were not derived from any original grant, but are to be con- 
sidered as belonging to congress, merely because congress 
exercised them, and because they were sustained in so do- 
ing by the approbation of the several colonies or states, 
whose representatives they were. Surely, then, our au- 
thor was neither very accurate nor very candid, in so sta- 
ting this decision as to give rise to the idea that, in the 
opinion of the supreme court, congress possessed original 
sovereign powers, by the consent of ' the people of the 
United States.' Even, however, if the court had so deci- 
ded, in express terms, it would have been of no value in 
the present enquiry, as will by-and-by be shewn." 



LECTURES ON CONSTITUTIONAL LAW. 77 



LECTURE III. 

We come next to the declaration of independence, and 
to the novel and original idea, that it did not operate the 
separate independence and individual sovereignty of the 
several states, but, that, as the declaration was the united 
act of all, so it operated to make the united colonies free 
and independent as one people, and in that character only. 
This, it is very clear, is the position industriously insinuated 
by the learned author, although, as usual, he is by no 
means very specific in stating his proposition, lest, per- 
haps, it might be the more startling from being more clearly 
discerned in its first announcement. 

" § 211. In the next place," says judge Story, " the co- 
lonies did not severally act for themselves, and proclaim 
their own independence. It is true, that some of the 
states had previously formed incipient governments for 
themselves ; but it was done in compliance with the re- 
commendations of congress.(fl!) Virginia, on the 29th of 
June 1776, by a convention of delegates, declared 'the 
government of this country, as formerly exercised under 
the crown of Great Britain, totally dissolved ;' and pro- 
ceeded to form a new constitution of government. New 
Hampshire also formed a government, in December, 1775, 
which was manifestly intended to be temporary, ' during 
(as they said) the unhappy and unnatural contest with 
Great Britain. '(6) New Jersey, too, established a frame 
of government, on the 2d of July 177'6 ; but it was ex- 
pressly declared, that it should be void upon a reconcilia- 
tion with Great Brirain.(f) And South Carolina, in 
March 1776, adopted a constitution of government; but 
this was, in like manner, ' established until an accommo- 
dation between Great Britain and America could be ob- 

(a) Journal of Congress, 1775, p. 115, 231, 235, 279; 1 Pitk. 
Hist. 351, 355 ; Marsh. Colon, ch. 14, p. 441, 447 ; 9 Hening's Stat. 
112, 113; 9 Dane's Abridg. App. § 5, p. 16. 

{b) 2 Balk. N. Hamp. ch. 25, p. 306, 308, 310 ; 1 Pitk. Hist. 351, 
355. 

(c) Stokes's Hist. Colon. 51, 75. 



/O LECTURES ON 

tained.'(c?) But the declaration of the independence of 
all the colonies was the united act of all. It was ' a de- 
claration by the representatives of the United States of 
America in congress assembled ;' — ' by the delegates ap- 
pointed by the good people of the colonies,' as in a prior 
declaration of rights they were called. (e) It was not an 
act done by the state governments then organized ; nor by 
persons chosen by them. It was emphatically the act of 
the whole people of the united colonies, by the instru- 
mentality of their representatives, chosen for that, among 
other purposes.(y ) It was an act not competent to the state 
governments, or any of them as organized under their 
charters, to adopt. Those charters neither contemplated 
the case, nor provided for it. It was an act of original, inhe- 
rent sovereignty by the people themselves, resulting from 
their right to change the form of government, and to, 
institute a new government, whenever necessary for their 
safety and happiness. So the declaration of independence 
treats it. No state had presumed of itself to form a new 
government, or to provide for the exigencies of the times, 
without consulting congress on the subject ; and when 
they acted, it was in pursuance of the recommendation of 
congress. It was, therefore, the achievement of the whole 
for the benefit of the whole. The people of the united 
colonies made the united colonies free and independent 
states, and absolved them from all allegiance to the British 
crown. The declaration of independence has accordingly 
always been treated, as an act of paramount and sovereign 
authority, complete and perfect per se, and ipso facto work- 
ing an entire dissolution of all political connexion with 
and allegiance to Great Britain. And this not merely as a 
practical fact, but in a legal and constitutional view of the 
matter by courts of justice. (^) 

"§212. In the debates in the South Carolina legisla- 
ture, in January 1788, respecting the propriety of calling 
a convention of the people to ratify or reject the constitu- 
tion, a distinguished statesman(/i) used the following lan- 

(<Z) Stokes's Hist. Colon. 105; 1 Pitk. Hist. 3-55. 
(e) Journal 1776, p. 241 ; Journal 1774, p. 27, 45. 
(/) 2 Dall. 470, 471. Per Jay, C. J. ; 9 Dane's Abridg. App. § 
12, 13, p. 23, 24. 

Ig) 2 Dallas's R. 470. 

(%) Mr. Charles Cotesworth Pinckney. 



CONSTITUTIONAL LAW. 79 

guage : ' This admirable manifesto (i. e. the declaration of 
independence) sufficiently refutes the doctrine of the indi- 
vidual sovereignty and independence of the several states. In 
that declaration the several states are not even enumerated ; 
but after reciting in nervous language, and with convincing 
arguments our right to independence, and the tyranny, 
which compelled us to assert it, the declaration is made in 
the following words : ' We, therefore, the representatives 
of the United States, &c. do, in the name, &c. of the 
good people of these colonies, solemnly publish, &c. that 
these united colonies are, and of right ought to be, free 
and independent states.' The separate independence and 
individual sovereignty of the several states were nevei? 
thought of by the enlightened band of patriots, who framed 
this declaration. The several states are not even mentioned 
by name in any part, as if it was intended to impress the 
maxim on America, that our freedom and independence 
arose from our union, and that without it we could never 
be free or independent. Let us then consider all attempts 
to weaken this union by maintaining, that each state is sepa- 
rately and individually independent, as a species of politi- 
cal heresy, which can never benefit us, but may bring on 
us the most serious distresses." (z) 

(i) Debates in South Carolina, 1788, printed by A. E. Miller, 
Charleston, 1831, p. 43, 44. — Mr. Adams, in his Oration on the 4th 
of July 1831, which is valuable for its views of constitutional prin- 
ciples, insists upon the same doctrine at considerable length. 
Though it has been published since the original preparation of these 
lectures, I gladly avail myself of an opportunity to use his autho- 
rity in corroboration of the same views. "The union of the colo- 
nies had preceded this declaration, [of independence,] and even 
the commencement of the war. The declaration was joint, that 
the united colonies were free and independent states, but not that 
any one of them was a free and independent state, separate from 
the rest." — "The declaration of independence was a social com- 
pact, by which the whole people covenanted with each citizen, and 
each citizen with the whole people, that the united colonies were, f 
and of right ought to be, free and independent states. To this com- 
pact union was as vital, as freedom or independence." — "The de- 
claration of independence announced the severance of the thirteen 
united colonies from the rest of the British empire, and the ex- 
istence of their people from that day forth as an independent na- 
tion. The people of all the colonies, speaking by their representa- 
tives, constituted themselves one moral person before the face of 
their fellow men." — "The declaration of independence was not a 



* , 



80 LECTURES ON 

" § 213. In the next place we have seen, that the power 
to do this act was not derived from the state governments; 
nor was it done generally with their co-operation. The 
question then naturally presents itself, if it is to be consi- 
dered as a national act, in what manner did the colonies 
become a nation, and in what manner did congress be- 
come possessed of this national power ? The true answer 
must be, that as soon as congress assumed powers and 
passed measures, which were in their nature national, to 
that extent the people, from whose acquiescence and con- 
sent they took effect, must be considered as agreeing to 
form a nation. (A;) The congress of 1774, looking at the 
general terms of the commissions, under which the dele- 
gates were appointed, seemed to have possessed the power 
of concerting such measures, as they deemed best, to re- 
dress the grievances, and preserve the rights and liberties 
of all the colonies. Their duties seem to have been prin- 
cipally of an advisory nature ; but the exigencies of the 
times led them rather to follow out the wishes and objects 
of their constituents, than scrupulously to examine the 
words, in which their authority was communicated. (/) The 
congress of 1775 and 1776, were clothed with more am- 
ple powers, and the language of their commissions gene- 
rally, was sufficiently broad to embrace the right to pass 
measures of a national character and obligation. The cau- 
tion necessary at that period of the revolutionary struggle, 
rendered that language more guarded than the objects re- 
ally in view would justify; but it was foreseen, that the 
spirit of the people would eagerly second every measure 
adopted to further a general union and resistance against 
the British claims. The congress of 1775, accordingly 
assumed at once (as we have seen) the exercise of some of 
the highest functions of sovereignty. They took measures 
for national defence and resistance ; they followed up the 
prohibitions upon trade and intercourse with Great Bri- 

declaration of liberty merely acquired, nor was it a form of govern- 
ment. The people of the colonies were already free, and their 
forms of government were various. They were all colonies of a 
monarchy. The king of Great Britain was their common sove- 
reign." 

(k) 3 Ball. R. 80, 81, 90, 91, 109, 110, 111, 117. 

(0 3 Ball. R. 91. 



CONSTITUTIONAL LAW. 81 

tain ; they raised a national army and navy, and authorized 
limited national hostilities against Great Britain ; they 
raised money, emitted bills of credit, and contracted debts 
upon national account ; they established a national post 
office ; and, finally, they authorized captures and condem- 
nation of prizes in prize courts, with a reserve of appel- 
late jurisdiction to themselves. 

"§214. The same body, in 1776, took bolder steps, 
and exerted powers, which could in no other manner be 
justified or accounted for, than upon the supposition, that 
a national union for national purposes already existed, and 
that the congress was invested with sovereign power over 
all the colonies for the purpose of preserving the common 
rights and liberties of all. They accordingly authorized 
general hostilities against the persons and property of Bri- 
tish subjects ; they opened an extensive commerce with fo- 
reign countries, regulating the whole subject of imports 
and exports ; they authorized the formation of new govern- 
ments in the colonies ; and, finally, they exercised the so- 
vereign prerogative of dissolving the allegiance of all colo- 
nies to the British crown. The validity of these acts was 
never doubted or denied by the people. On the contrary, 
they became the foundation upon which the superstructure 
of the liberties and independence of the United States has 
been erected. Whatever, then, may be the theories of in- 
genious men on the subject, it is historically true, that be- 
fore the declaration of independence, these colonies were 
not, in any absolute sense, sovereign states ; that that event 
did not find them or make them such, but that at the mo- 
ment of their separation, they were under the dominion of 
a superior controlling national government, whose powers 
were vested in and exercised by the general congress with 
the consent of the people of all the states. (?«) 

(m) This whole subject is very amply discussed by Mr. Dane in 
his Appendix to the 9th volume of his Abridgment of the Laws; 
and many of his views coincide with those stated in the text. The 
whole of that Appendix is worthy of the perusal of every consti- 
tutional lawyer, even though he might differ from some of the con- 
clusions of the learned author. He will there find much reason- 
ing from documentary evidence of a public nature, which has not 
hitherto been presented in a condensed or accurate shape. 



82 LECTURES ON 

" § 215. From the moment of the declaration of inde- 
pendence, if not for most purposes at an antecedent pe- 
riod, the united colonies must be considered as being a na- 
tion de facto, having a general government over it created, 
and acting by the general consent of the people of all the 
colonies. The povv^ers of that government vv^ere not, and 
indeed could not be well defined. But still its exclusive 
sovereignty, in many cases, was firmly established ; and its 
controlling power over the states was in most, if not in all 
national measures, universally admitted. (n) The articles 
of confederation, of which we shall have occasion to speak 
more hereafter, were not prepared or adopted by congress 
until November 1777, (o) they were not signed or ratified 
by any of the states until July 1778; and they were not 
ratified, so as to become obligatory upon all the states, 
until March 1781. In the intermediate time, congress 
continued to exercise the powers of a general government, 
whose acts were binding on all the states. And though 
they constantly admitted the states to be ' sovereign and 
independent communities ;'(p) yet it must be obvious, that 
the terms were used in the subordinate and limited sense 
already alluded to ; for it was impossible to use them in 
any other sense, since a majority of the states could, by 
their public acts in congress, control and bind the mino- 
rity. Among the exclusive powers exercised by congress, 
were the power to declare war and make peace ; to autho- 
rize captures ; to institute appellate prize courts; to di- 

Some interesting views of this subject are also presented in pre- 
sident Monroe's message on internal improvements, on the 4th of 
May 1822, appended to his message respecting the Cumberland 
road. See, especially, pages 8 and 9. 

When Mr. chief justice Marshall, in Ogden v. Gibbons, (9 
Wheat. R. 187,) admits, that the states, before the formation of the 
constitution, were sovereign and independent, and were connected 
with each other only by a league, it is manifest, that he uses the 
word "sovereign" in a very restricted sense. Under the confe- 
deration, there were many limitations upon the powers of the 
states. 

(n) See Penhallow v. Doane, 3 Dall. R. 54; Ware v. Hylton, 3 
Dall. 199, per Chase, J. See the circular letter of congress, 13th 
September 1779; 5 Jour. Cong. 341, 348, 349. 

(o) Jour, of Cong. 1777, p. 502. 

(jo) See letter of 17th Nov. 1777, by congress, recommending 
the articles of confederation; Jour, of 1777, p. 513, 514. 



CONSTITUTIONAL LAW. 83 

rect and control all national, military, and naval opera- 
tions; to form alliances and make treaties; to contract 
debts and issue bills of credit upon national account. In 
respect to foreign governments, we were politically known 
as the United States only ; and it was in our national ca- 
pacity, as such, that we sent and received ambassadors, en- 
tered into treaties and alliances, and were admitted into 
the general community of nations, who might exercise the 
right of belligerents, and claim an equality of sovereign 
powers and prerogatives. (g') 

" § 216. In confirmation of these views, it may not be 
without use to refer to the opinions of some of our most 
eminent judges, delivered on occasions which required an 
exact examination of the subject. In Chisliolni's Execu^ 
tors V. The State of Georgia, (2 Ball. 419, 470,)(r) Mr. 
chief justice Jay, who was equally distinguished as a re- 
volutionary statesman and a general jurist, expressed him- 
self to the following effect : ' The revolution, or rather 
the declaration of independence, found the people already 
united for general purposes, and at the same time pro- 
viding for their more domestic concerns by state con- 
ventions and other temporary arrangements. From the 
crown of Great Britain, the sovereignty of their country 
passed to the people of it ; and it was then not an uncom- 
mon opinion, that the unappropriated lands, which belong- 
ed to that crown, passed, not to the people of the colony 
or states within whose limits they were situated, but to the 
tohole people. On whatever principle this opinion rested, 
it did not give way to the other ; and thirteen sovereignties 
were considered as emerging from the principles of the re- 
volution, combined by local convenience and considera- 
tions. The people, nevertheless, continued to consider 
themselves, in a national point of view, as one people ; and 
they continued without interruption to manage their na- 
tional concerns accordingly.' In Penhalloio v. Doane, (3 
Ball. R. 54,)(.s) Mr. justice Patterson (who was also a re- 
volutionary statesman) said, speaking of the period before 
the ratification of the confederation : ' The powers of con- 
gress were revolutionary in their nature, arising out of 

(g) 1 Amer. Museum, 15; 1 Kent. Comm. 197, 198, 199. 
(r) S. C. 1 Peters's Cond. R. 635. 
(s) S. C. 1 Peters's Cond. R. 21. 



84 LECTURES ON 

events adequate to every national emergency, and coexten- 
sive with the object to be attained. Congress was the ge- 
neral, supreme, and controlling council of the nation, the 
centre of the union, the centre of force, and the sun of 
the political system. Congress raised armies, fitted out a 
navy, and prescribed rules for their government, &c. di-c. 
These high acts of sovereignty were submitted to, acqui- 
esced in, and approved of by the people of America, &c. 
&c. The danger being imminent and common, it became 
necessary for the people or colonies to coalesce and act in 
concert, in order to divert, or break the violence of the 
gathering storm. They accordingly grew into union, and 
formed one great political body, of which congress was 
the directing principle and soul, tfec. &c. The truth 
is, that the states, individually, were not known, nor re- 
cognized as sovereign by foreign nations, nor are they 
now. The states collectively, under congress, as their con- 
necting point or head, were acknowledged by foreign pow- 
ers, as sovereign, particularly in that acceptation of the 
term, which is applicable to all great national concerns, 
and in the exercise of which, other sovereigns would be 
more immediately interested.' In Ware v. Hylttn, (3 Dall. 
199, )(i) Mr. justice Chase (himself also a revolutionary 
statesman) said : ' It has been enquired, what powers con- 
gress possessed from the first meeting in September 1774, 
until the ratification of the confederation on the first of 
March 1781. It appears to me, that the powers of con- 
gress during that whole period were derived from the peo- 
ple they represented, expressly given through the medium 
of their state conventions or state legislatures ; or that af- 
ter they were exercised, they were impliedly ratified by the 
acquiescence and obedience of the people, &c. The pow- 
ers of congress originated from necessity, and arose out of 
it, and were only limited by events; or, in other words, 
they were revolutionary in their nature. Their extent de- 
pended on the exigencies and necessities of public affairs. 
I entertain this general idea, that the several states retain- 
ed all internal sovereignty ; and that congress properly 
possessed the rights of external sovereignty. In deciding 
on the powers of congress, and of the several states be- 
fore the confederation, I see but one safe rule, namely, 

(t) S. C. 1 Peters's Cond. R. 99. 



CONSTITUTIONAL, LAW. ©5 

that all the powers actually exercised by congress before 
that period were rightfully exercised, on the presumption 
not to be controverted, that they were so authorized by 
the people they represented, by an express or implied 
grant ; and that all the powers exercised by the state con- 
ventions or state legislatures, were also rightfully exer- 
cised on the same presumption of authority from the peo- 
ple.' (m) 

" § 217. In respect to the powers of the continental 
congress exercised before the adoption of the articles of 
confederation, few questions were judicially discussed du- 
ring the revolutionary contest ; for men had not leisure in 
the heat of war, nicely to scrutinize or weigh such sub- 
jects ; inter arma silent leges. The people, relying on the 
wisdom and patriotism of congress, silently acquiesced in 
whatever authority they assumed. But soon after the or- 
ganization of the present government, the question was 
most elaborately discussed before the supreme court of the 
United States, in a case calling for an exposition of the ap- 
pellate jurisdiction of congress in prize causes before the 
ratification of the confederation. (u) The result of that 
examination was, as the opinions already cited indicate, 
that congress, before the confederation, possessed, by the 
consent of the people of the United States, sovereign and 
supreme powers for national purposes ; and among others, 
the supreme powers of peace and war, and, as an inci- 
dent, the right of entertaining appeals in the last resort in 
prize causes, even in opposition to state legislation. And 
that the actual powers exercised by congress, in respect to 
national objects, furnished the best exposition of its con- 
stitutional authority, since they emanated from the repre- 
sentatives of the people, and were acquiesced in by the 
people." 

I have here, as before, inserted the whole passage which 
relates to this remarkable opinion, as to the effect of the 
declaration of independence, both because I am unwilling 

{u) See also 1 Kent. Comm. Lect. 10, p. 196; President Mon- 
roe's Exposition and Message, 4th of May 1822, p. 8, 9, 10, 11. 

(») Penhalloii? v. Doane, 3 Dall. 54, 80, 83, 90, 91, 94, 109, 110, 
111,112,117; Journals of Congress, March 1779, p. 86 to 88 ; 1 
Kent. Comm. 198, 199. 
8 



86 LECTURES ON 

to misstate the positions of the author, and because I am 
well content to give to it all the benefit of that ability with 
which it is presented. I shall now proceed to remark very 
succinctly upon several passages which more particularly 
demand our scrutiny and observation. 

In a preceding passage, § 201, the learned author re- 
marks : " Thus was organized under the auspices, and with 
the consent of the people, acting directly in their primary, 
sovereign capacity, and without the intervention of the 
functionaries to whom the ordinary powers of the govern- 
ment were delegated in the colonies, the first national go- 
vernment, which has been very aptly called the revolution- 
ary government, since in its origin and progress it was 
wholly conducted upon revolutionary principles." Now 
here, in the first place, we have a misstatement of the fact, 
as is manifest from the next preceding section, in which 
it is distinctly said that in some of the states where the legis- 
latures were in session, delegates to the congress of 1774 
icere appointed "by them; that is, by the functionaries to 
whom the ordinary powers of the government were en- 
trusted." So that this congress was composed of mem- 
bers chosen indiflierently in the several states, either by 
the legislatures or conventions, as each state thought pro- 
per ; a fact going far to establish the independent sove- 
reign action of each state, in appointing those who were 
to represent them in this great congress of nations. But 
in the second place, it would have made no difference as to 
the matter in question, whether all or none of the states 
had made the appointment by conventions, instead of by 
the ordinary functionaries of government. For the ques- 
tion here is, whether this appointment of delegates was 
state action, or the action of the great body of the Ameri- 
can people composing one nation. Now, whether the ap- 
pointments were made by legislatures or conventions, they 
were equally the result of state action. (ifl) The legislature 

(to) '* A distinction has been taken at the bar," says judge Iredell, 
" between a sf.ate, and the people of a state. It is a distinction I am 
not capable of comprehending. By a state forming a republic 
(speaking of it as a moral person,) / do not mean the legislature of 
the state, the executive or the judiciary, but all the citizens which 
compose that state., and are, if I may so express myself, integral 
parts of it, all together forming a body politic." Of course whe- 



CONSTITUTIONAL LAW. 87 

no more represented the individual state than the conven- 
tion. The convention in each state vi^as the representa- 
tive of that state, quoad the matter on which it acted. It 
represented no other state. It was amenable to none other. 
It was itself the impersonation of that sovereignty. It was 
appointed indeed " by the people acting in their primary, 
sovereign capacity," but yet as separate communities , and 
not as forming one great whole. It was, therefore, sove- 
reign within its own limits, but not beyond them. Accor- 
dingly, their delegates looked only to them; obeyed them 
alone ; submitted to their instructions, and were remov- 
able by them : all which demonstrably proves that the 
conventions of the states were as distinct from each other 
as the "ordinary functionaries," and that the acts of each 
was in behalf and by authority of its own state, as a dis- 
tinct sovereign, and not in right of any other part of the 
confederated states, or of the whole people of America as 
constituting one people. In accordance with this charac- 
ter, each delegation voted together, and the majority of the 
delegation determined the vote of the state. Each state 
had but one vote, whether large or small, and thus, in these 
important features, the congress assumed the character of 
an assembly of ambassadors, rather than that of the legis- 
lature of a single nation. 

Such was the character of that body which declared 
independence ; a body composed of delegates from sepa- 
rate political societies, who had only united their common 
efforts for common defence, and for the severance of the 
chain that bound them to a common tyrant, without an act 
indicating a design on the part of any, to surrender their 
separate political character. Thus acting, they declared 
independence. In that declaration the representatives of 
the several colonies pronounced that the United Colonies 
were and of right ought to be free and independent states, 
not that they constituted a free and independent state. 
Then plurality is acknowledged and asserted by the decla- 
ration itself, and that plurality is decisive of the fact, that 
the independence of the states themselves, as several poli- 
tical bodies, was distinctly asserted. It is not true then that 

ther the action be by a legislature or convention, it is the same 
thing, since neither constitutes the state, but on the other hand 
either represents it. 



OO LECTURES ON 

the states did " not severally act for themselves ;" for the 
delegates of each, in congress assembled, acted for their 
respective states, though in conjunction, it is true, with the 
delegates from other states acting equally for theirs. And 
accordingly, we find when the treaty of peace was made, 
each state is distinctly named in the treaty, and the inde- 
pendence of all is as distinctly acknowledged. 

But this is not all. Before the declaration of July 4, 
the commonwealth of Virginia had formed a government 
for herself Not an incipient government, as our author 
says, but a permanent and independent one, which lasted un- 
til changed by her ovrnjiat in the year 1832. This creation 
of an independent government by the state of Virginia, 
ipso facto constituted her an independent state, and ac- 
cording to the notion of Mr. Jay, (a;) the sovereignty over 
the state must instantly have passed from the crown of 
Great Britain to the people of the state. It could not pass 
to the people of the United States, for there were none 
such, since they had not yet declared independence. The 
first steps towards establishing the government of Vir- 
ginia were taken on the 6th day of May, and the act 
was consummated on the 29th of June 1776. It was 
her own act, done of her own free will, and not by com- 
mand, or even by the recommendation of congress. Con- 
gress, before the declaration, recommended only provi- 
sional governments, like that of New Hampshire, to con- 
tinue " during the unhappy and unnatural contest with 
Great Britain." They could not, with any consistency, 
recommend the erection of a permanent government by 
any state, before they had themselves resolved on a decla- 
ration of independence ; about which, it is notorious there 
was much division of opinion. But the new government of 
Virginia was permanent, and cut her loose from Great Bri- 
tain. It is therefore gratuitous in judge Story to say that 
" no state had presumed of itself to form a new govern- 
ment without consulting congress on the subject ;" for Vir- 
ginia did form such a government without congressional 
recommendation, and did " declare the former government 
under Great Britain totally dissolved," before the congress 
of the United States had resolved on independence. From 

(x) See note, p. 49. 



CONSTITUTIONAL LAW. ©9 

that moment, as judge Chase very justly observes, (3 Dall. 
224,) " Virginia was a free, sovereign and independent 
state." Nay, this learned judge goes farther, and expressly 
says of the declaration of independence itself, that " he 
considered it as a declaration not that the United Colonies 
jointly in a collective capacity were independent states, 
but that each of them was a sovereign and independent 
state ; that is, that each of them had a right to govern it- 
self by its own authority and its own laws, without any 
control from any other poioer upon ea7'th."{y) 

But our learned author seems to conceive that he settles 
the question by saying, that " the declaration was the uni- 
ted act of all ;" — "that it was the act of the whole people 
of the United Colonies, exercising original inherent sove- 
reignty, resulting from their right to change the form of 
government," &c. But the question is, in what character 
was it the united act of all 1 It was in their character of 
separate communities, dependent on each other only so far 
as common danger and their own consent had made them 
so. It was the act, indeed, of all America; but not as 
forming one nation, but as separate communities, all uni- 
ting in the common object of securing sovereignty and in- 
dependence to each. How did they vote? Not by indi- 
viduals, as representing parts of one whole, but by states, 
as representing separate communities. If any one state 
had refused to concur in the declaration, the vote of all 
the rest could not have bound her. Delaware could no 
more have been included if she had declined to assent, 
than Canada or Vermont, who did not send delegates to the 
body. It was then the joint act, indeed, of the United Co- 
lonies, but it was the joint act of communities independent 
of each other, and uniting in one common measure for the 
benefit of each. And this seems to have been the under- 
standing of those who had themselves been actors in the 
stirring scenes of the revolution. It is distinctly avowed 
in the Federalist, (p. 213,) a work which we all know was 
published but a few years after the close of the war, and 
came from the hands of some of our wisest and purest pa- 

(y) The case of Vermont was peculiar. She had no representa- 
tive in the congress which declared independence, though she 
joined her arms with ours. She declared her own independence 
in 1777. 



90 LECTURES ON 

triots, least liable to be biassed in favour of the sovereignty 
of the states. One of its authors, too, at a future day, 
from the elevated station of the supreme court, distinctly 
declared, " that by the declaration of independence thir- 
teen sovereignties vi^ere considered as emerged from the 
principles of the revolution;" so that reason and authority 
concur in rejecting the conclusions of our author. 

It is to be regretted that in a vi^ork intended for the in- 
struction of our youth, any passage should occur vv^hich is 
calculated to mislead, or may be regarded as a sophism. 
An instance, how^ever, is found in that which we have been 
examining. Our author says, a declaration of indepen- 
dence " was an act not competent to the state governments, 
(IS organized under their charter s,io SlAo^V (p. 198.) This 
is, indeed, undeniable. Their charters did not authorize 
them to adopt such a measure ; but what was there to pre- 
vent the "original inherent sovereignty of the people" 
themselves in each state from such adoption. It was the 
right of revolution which belonged to each of the separate 
communities, as much as to the whole, and which each 
might assert independent of the others. It was this right 
of each, which, in general congress, was asserted by the 
whole, for the benefit of each, and in that sense only for 
the benefit of the whole. With these views, I look upon 
the positions of judge Story, and the ipse dixits of Mr. 
Pinckney and Mr. Adams, on whose authority he relies, as 
heretical and false, as I am equally well assured they are 
dangerous and pernicious. 

If, indeed, there could be any doubt that thirteen inde- 
pendent communities sprung into existence with the de- 
claration of independence, that doubt would be removed, 
by the manner in which the states themselves, looked upon 
their position. Their view of the matter is distinctly dis- 
closed in the articles of confederation. Those articles 
profess to be between the states of New Hampshire, Mas- 
sachusetts, &,c. [naming each state in the confederacy.] 
They profess to be articles of confederation, (a term only 
applicable to an association of states) and perpetual union, 
which implies an anterior state in which there was no such 
union. And such was the fact ; for until that confedera- 
tion, the congress of the United States constituted only a 
revolutionary government, not regularly organized, but ex- 



CONSTITUTIONAL LAW. 91 

isting by tacit consent and acquiescence of the several 
states, who coalesced and acted in concert from a sense of 
common danger. There was between them no express 
agreement. The confederation was, therefore, intended 
to bind together the states, who were, till then, unbound ; 
and to unite those who had never before been united, but 
by the bond of common safety. But in its very formation, 
they were careful to retain that which to every nation is 
sweet — its sovereignty and independence. The style of 
the confederacy was the United States of America, a name 
which very plainly indicates the union of political bodies, 
and not the oneness of a single republic. But to place the 
matter beyond question, the second section is devoted to 
the declaration "that each state retains li?, sovereignty, 
freedom and independence, and every power, jurisdiction 
and right, which is not by this confederation expressly de- 
legated to the United States in congress assembled." They 
not only declare, that thenceforth each state shall be held 
to be sovereign and independent, but they avow their an- 
terior independence and sovereignty, by the declaration 
that they retained them. They could not retain that which 
they had not before enjoyed. Nay, more ; — each state in 
making this declaration, uno flatu, asserts its own rights, 
and recognizes the rights of others. Each, therefore, re- 
cognized the anterior sovereignty and independence of 
every other. 

It is much to be regretted that our distinguished author 
has no where, (so far as I can discover) in the examination 
of the question of the independence of the states, thought 
fit to present us with his views of the effect of these arti- 
cles in throwing light upon the matter. Had he done so, we 
may hope that he would never have arrived at the conclusion 
which he gives in the language of Mr. Pinckney, that "the 
separate independence and individual sovereignty of the 
several states were never thought of by the enlightened 
band of patriots loho framed the declaration.'^ Now it 
happens that Hancock, Adams and Gerry from Massachu- 
setts, Ellery from Rhode Island, Sherman, Huntingdon 
and Wolcott from Connecticut, Lewis from New York, 
Witherspoon from Jersey, Robert Morris from Pennsylva- 
nia, Thomas M'Kean from Delaware, Carroll from Mary- 
land, the two Lees from Virginia, Penn from North Caro- 



92 LECTURES ON 

lina, and Hayward from South Carolina, who signed the 
declaration of independence, were signers of the confedera- 
tion in which the sovereignty of each was declared to be 
retained; and we have already seen the opinion of judge 
Chase, another signer of the declaration, of his views of 
the same interesting matter. I feel myself, therefore, jus- 
tified in repelling the position, that " the separate inde- 
pendence and individual sovereignty of the several states, 
were never thought of by the patriot signers of the decla- 
ration of independence. 

It is also to be regretted that the able commentator, in 
citing judicial opinions in confirmation of his views, has 
given us, among others, the portion of judge Chase's opi- 
nion in Ware v. Hylton, 3 Dall. p. 231, which is least 
at variance with his own theories, and has omitted to pre- 
sent to the student the strong remarks of that able judge 
in conflict with his own views. In these, as we have al- 
ready seen, he declares, that he considers the declaration 
of independence (which he himself had signed,) " as a de- 
claration NOT that the United States jointly, in a collective 
capacity, were independent states, but that each of them 
was a sovereign and independent stated It would, also, 
have been deeply interesting to his readers to have learned, 
that Mr. Marshall (afterwards chief justice), was of counsel 
in that cause, and strenuously maintained the indepen- 
dence and sovereignty of Virginia in 1777 ; a position in 
irreconcilable conflict with the opinions of the commen- 
tator. 



CONSTITUTIONAL LAW. 93 



LECTURE IV. 

From what has been advanced, I hope the separate 
sovereignties of the states upon the adoption of the de- 
claration of independence, is sufficiently apparent. T 
have devoted more time to these investigations, because 
the opposite opinion has been so industriously maintained 
by an able writer, obviously with the view of influencing 
certain great political questions which have arisen under 
our constitution. If, indeed, judge Story means nothing 
more than that the revolutionary congress, both before and 
after the declaration of independence, exercised large 
powers by the acquiescence and consent of the states, in 
relation to national concerns, there could be no difference 
between us. The matter of fact is beyond question. But 
judge Story seems to be of opinion that the states were not 
sovereign during this period, but that the sovereignty was 
in the general government, and that the people were one.(«) 
Those on the other hand who maintain the rights of the 
states, regard the sovereignty as having existed and con- 
tinued in the states, though the exercise of certain powers 
in relation to foreign concerns was permitted by them on 
the part of congress. But this very permission, this ac- 
quiescence and tacit consent so frequently spoken of by 
the commentator, is itself decisive of state supremacy. 
Congress had no power but by state acquiescence. In 
whom then was the sovereignty 1 In those assuredly who 
gave the authority to the general government, and without 
whose assent that authority could not exist. Such is the 
case in every league, where powers are vested in a general 
council, for the conduct of the foreign affairs of the asso- 
ciated nations. Such was the case in our own confedera- 
cy, in which, as we have seen, very large powers were 
given, but the " freedom, sovereignty and independence" of 

(a) He quotes too, with apparent acquiescence, the extravagan- 
ces of Mr. Dane, which it might well have been hoped would have 
found no place save in his own pages. Judge Story has transplant- 
ed them into his. They are hereafter adverted to. 



94 LECTURES ON 

the states were scrupulously reserved, and congress was 
confined to the powers expressly granted by the articles of 
confederation. From the moment of the adoption of that 
compact, at least, the sovereignty of the states must be ad- 
mitted, as each expressly asserted its own, while it as clear- 
ly acknowledged the independence of others. They treated 
too, with other nations, in the character of a confederacy 
of states, and not in that of a single nation. According- 
ly, in the treaty of peace, his Britannic majesty acknow- 
ledges " the United States, viz : New Hampshire, Massa- 
chusetts," &c. [naming them each individnally] " to be 
free, sovereign and independent states ; that he treats 
with them as such, and for himself relinquishes," &c. So 
too the compact itself admits the distinct anterior sove- 
reignty of each state in this, that though ratified by twelve 
states, it was not held binding on the thirteenth ; whereas, 
if as judge Story observes, " congress was invested with 
sovereign power over all the colonies, for the purpose of 
preserving the rights and liberties of all," (page 202,) what 
hindered a majority of that body from binding every state 
to enter into the confederacy, whether they approved it or 
not ? What would have hindered the abolition of the stMe 
governments, and the substitution of one general govern- 
ment for all purposes whatever. Yet such sweeping powers 
were never dreamed of, since in fact the congress was the 
creature of the states, and existed by their sufferance. Its 
powers were limited, and limited by those who gave them. 
They therefore were the masters ; fhei/ were the sovereigns, 
M'hile the general government could exercise no authority 
but that which they had expressly given. 7^5 act was their 
act, and derived its force from them, and the sovereign 
power which it exercised was their sovereign power. While 
it possessed those powers, it was, it may be said, sovereign 
as to them, and the states were respectively sovereign as to 
all powers not granted. As it has been well expressed by 
judge Iredell, (2 Dall. 435,) in relation to the present con- 
stitution, "Every state in the Union, in every instance 
where its sovereignty has not been delegated to the United 
States, I consider to be as completely sovereign as the 
United States are in relation to the powers surrendered. 
The United States are sovereign as to all the powers of 
government actually surrendered ; each state in the Union 



CONSTITUTIONAL LAW. 95 

is sovereign as to all the powers reserved ; the part not sur- 
rendered must remain as it was before." 

In strictness, according to the theory of our government, 
the people are the sovereign. And they have delegated a 
part of their power to the general government, and part to 
the state governments, and each exercise the respective por- 
tions of the sovereign powers allotted to them. Each may 
in this sense be said to be sovereign, though the sovereign- 
ty in fact still resides in the people. In what people? The 
people of each state, distinct from the other states, and the 
people of each state accordingly delegates the power. For 
as there is no people of the United States, considered ag- 
gregately, the sovereignty must be in the people of each 
state. " I conclude," says judge Iredell, " that every par- 
ticle of authority which originally resided either in con- 
gress, or in any branch of the state governments, was de- 
rived from the people, who were permanent inhabitants of 
each province in the first instance, and afterwards became 
citizens of each state; that this authority was conveyed by 
each body politic separately , and not by all the people in 
the several provinces or states, jointly, and of course that 
no authority could be conveyed to the whole, but that 
which previously was possessed by the several parts," &c. 

We now come to the consideration of the condition of 
the states under the articles of confederation, (6) and here 
we shall find that however successful the commentator 
may have been in insinuating doubts of their sovereignty 
before, every thing conspires with that instrument to estab- 
lish that sovereignty beyond all question. I shall present 
the different evidences of it as succinctly as possible, as 
they are so numerous that to expatiate on each would un- 
necessarily consume our time. 

1. And first let it be remarked that the articles are de- 
clared to be articles of confederation ; a term which in its 
ordinary as well as in its radical signification, implies a 
league or union between states, as contradistinguished from 
a national government over one people. 

2. They are declared to be articles of confederation be- 
tween the states of New Hampshire, &c., [naming each,] 
thus recognizing each as a state, and as such capable of 

(&) See the articles, 1 L. U. S. 13. 



96 LECTURES ON 

contracting with other states, which is one of the highest 
attributes of sovereignty. 

3. They are declared also to be articles of perpetual 
union ; an expression which strongly negatives the favourite 
notion of oneness, since union implies the connection of 
those who before were separate. 

4. The act of uniting is styled a confederacy, and the 
3d article declares that "the said states hereby severally 
enter into a firm league of friendship for common de- 
fence, &c., binding themselves to assist each other, and 
thus distinctly recognizing their separateness and indepen- 
dence of each other. 

5. The confederacy is styled " The United States of 
America," still keeping in view the fact of its component 
parts being different bodies politic. 

6. The second article declares that each state retains 
its sovereignty, freedom and independence, and all powers 
not expressly granted ; thus asserting anterior sovereignty 
in each, and conceding it to every other. 

7. Various provisions shew that the parties kept in 
view, throughout, the distinctness of their several com- 
munities, and their attributes of sovereignty ; thus 

8. " The better to secure and perpetuate mutual friend- 
ship and intercourse between the people of the different 
states in this Union, it is provided, that the free inhabitants 
of each shall be entitled to all the privileges of citizens in 
the several states ;" a provision utterly unnecessary, if 
they formed but one people. 

9. The states are restricted from sending ambassadors, 
entering into treaties, engaging in war, or keeping troops 
or navies ; thus clearly admitting, that but for this restric- 
tion, every state would possess these important attributes 
of sovereignty. 

10. In assenting to the articles of confederation, the 
states acted independently of each other, and the legisla- 
tures of the several states, through their delegates, declared 
their respective assents. 

11. No state was held bound which did not expressly 
assent, and no change was to be made in the articles at 
any time without the consent of every state. 

12. The congress under this confederation was com- 
posed of delegates not elected by the people, but by the le- 
gislatures in each state. 



CONSTITUTIONAL LAW. 97 

13. Those delegates might be recalled by the legisla- 
tures, and were liable to be instructed by them. 

14. The ratification of the articles by the states was by 
delegates acting under instructions of the state legislatures. 

15. And every delegate in signing expressly declared 
that he did so " on the part and behalf of the state" he 
represented. 

Lastly. Several of the states at first declared their assent 
to the articles which were drawn up in 1778. Maryland 
withheld her assent till 1781 ; a fact which distinctly nega- 
tives all notion of the nationality of the act. 

It is time that I should now lay before the student judge 
Upshur's remarks on the subject, of which I have been 
treating : 

" The examination of this part of the subject has pro- 
bably been already drawn out to too great an extent ; but 
it would not be complete without some notice of another 
ground, upon which our author rests his favourite idea — 
that the people of the colonies formed ' one people' or na- 
tion. Even if this unity was not produced by the appoint- 
ment of the revolutionary government, or by the nature of 
the powers exercised by them, and acquiesced in by the 
people, he thinks there can be no doubt that this was the 
necessary result of the declaration of independence. In 
order that he may be fully understood upon this point, I 
will transcribe the entire passage relating to it : 

" ' In the next place, the colonies did not severally act 
for themselves and proclaim their own independence. It 
is true that some of the states had previously formed inci- 
pient governments for themselves ; but it was done in com- 
pliance with the recommendations of congress. Virginia, 
on the 29th of June 1776, by a convention of delegates, 
declared ' the government of this country, as formerly ex- 
ercised under the crown of Great Britain, totally dissolved,' 
and proceeded to form a new constitution of government. 
New Hampshire also formed a new government in Decem- 
ber 1775, which was manifestly intended to be temporary, 
'during (as they said) the unhappy and unnatural contest 
with Great Britain.' New Jersey, too, established a frame 
of government on the 2d July 1776; but it was expressly 
declared that it should be void upon a reconciliation with 
Great Britain. And South Carolina, in March 1776, 
9 



98 LECTURES ON 

adopted a constitution of government; but this was in 
like manner ' established until an accommodation between 
Great Britain and America could be obtained.' But the 
declaration of the independence of all the colonies was the 
united act of all. It was ' a declaration by the represen- 
tatives of the United States of America, in congress as- 
sembled ;' — ' by the delegates appointed by the good people 
of the colonies/ as, in a prior declaration of rights, they 
were called. It was not an act done by the state govern- 
ments then organized, nor by persons chosen by them. It 
was emphatically the act of the whole people of the Uni- 
ted Colonies, by the instrumentality of their representa- 
tives, chosen for that, among other purposes. It was an 
act not competent to the state governments, or any of 
them, as organized under their charters, to adopt. Those 
charters neither contemplated the case nor provided for 
it. It was an act of original, inherent sovereignty by the 
people themselves, resulting from their right to change the 
form of government, and to institute a new government, 
whenever necessary for their safety and happiness. So the 
declaration of independence treats it. No state had pre- 
sumed, of itself, to form a new government, or provide for 
the exigencies of the times, without consulting congress 
on the subject ; and when they acted, it was in pursuance 
of the recommendation of congress. It was, therefore, 
the achievement of the whole for the benefit of the whole. 
The people of the United Colonies made the United Colo- 
nies free and independent states, and absolved them from 
allegiance to the British crown. The declaration of inde- 
pendence has, accordingly, always been treated as an act 
of paramount and sovereign authority, complete and per- 
fect per se ; and ipso facto working an entire dissolution 
of all political connexion with, and allegiance to, Great 
Britain. And this, not merely as a practical fact, but in a 
legal and constitutional view of the matter by courts of 
justice.' 

" The first question which this passage naturally sug- 
gests to the mind of the reader is this : if two or more na- 
tions or people, confessedly separate, distinct and indepen- 
dent, each having its own peculiar government, without 
any ' direct political connexion with each other,' yet ow- 
ing the same allegiance to one common superior, should 



CONSTITUTIONAL LAW. 99 

unite in a declaration of rights which they believed be- 
longed to all of them alike, would that circumstance alone 
make them ' one people?' Stripped of the circumstances 
with which the author has surrounded it, this is, at last, 
the only proposition involved. If Spain, Naples and Hol- 
land, while they were ' dependencies' of the imperial 
crown of France, had united in declaring that they were 
oppressed, in the same mode and degree, by the measures 
of that crown, and that they did, for that reason, disclaim 
all allegiance to it, and assume the station of ' free and in- 
dependent states,' would they thereby have become one 
people? Surely this will not be asserted by any one. We 
should see, in that act, nothing more than the union of se- 
veral independent sovereignties, for the purpose of effect- 
ing a common object, which each felt itself too weak to 
effect, alone. Nothing would be more natural, than that 
nations so situated should establish a common military 
power, a common treasury, and a common agency, through 
which to carry on their intercourse with other powers ; but 
that all this should unite them together, so as to form them 
into one nation, is a consequence not readily perceived. 
The case here supposed, is precisely that of the American 
colonies, if those colonies were, in point of fact, separate, 
distinct, and independent of one another. If they were so, 
(and I think it has been shewn that they were,) then the 
fact that they united in the declaration of independence, 
does not make them ' one people,' any more than a similar 
declaration would have made Spain, Naples and Holland one 
people ; if they were not so, then they were one people al- 
ready, and the declaration of independence did not render 
them either more or less identical. It is true, the analogy 
here supposed does not hold in every particular ; the rela- 
tions of the colonies to one another were certainly closer, 
in many respects, than those of Spain, Naples and Hol- 
land, to one another. But as to all purposes involved in 
the present enquiry, the analogy is perfect. The effect at- 
tributed to the declaration of independence, presupposes 
that the colonies were not ' one people' before ; an effect 
which is in no manner changed or modified by any other 
circumstance in their relation to one another. That fact, 
alone, is necessary to be enquired into ; and until that fact 
is ascertained, the author's reasoning as to the effect of the 



100 LECTURES ON 

declaration of independence, in making them 'one peo- 
ple,' does not apply. He is obliged, therefore, to aban- 
don the ground previously taken, to wit, that the colonies 
were one people before the declaration of independence. 
And having abandoned it, he places the colonies, as to this 
question, upon the footing of any other separate and dis- 
tinct nations; and, as to these, it is quite evident that the 
conclusion which he has drawn in the case of the colo- 
nies, could not be correct, unless it would be equally cor- 
rect in the case of Spain, Naples and Holland, above sup- 
posed. 

" The mere fact, then, that the colonies united in the 
declaration of independence, did not necessarily make 
them one people. But it may be said that this fact ought, 
at least, to be received as proof that they considered them- 
selves as one people already. The argument is fair, and I 
freely let it go for what it is worth. The opinion of the 
congress of 1775, whatever it may have been, and however 
strongly expressed, could not possibly change the histori- 
cal facts. It depended upon those facts, alone, whether 
the colonies were one people or not. They might, by their 
agreement, expressed through their agents in congress, 
make themselves one people through all time to come ; but 
their power, as to this matter, could not extend to the time 
past. Indeed, it is contended, not only by our author, but 
by others, that the colonies did, by and in that act, agree 
to become ' one people' for the future. They suppose 
that such agreement is implied, if not expressed, in the 
following passages : ' We, therefore, the representatives of 
the United States of America,' — ' do, in the name and by 
the authority of the good people of these colonies, so- 
lemnly publish and declare that these United Colonies are, 
and of right ought to be, free and independent states.' 
Let us test the correctness of this opinion, by the history 
of the time, and by the rules of fair criticism. 

" The congress of 1775, by which independence was de- 
clared, was appointed, as has been before shewn, by the 
colonies in their separate and distinct capacity, each act- 
ing for itself, and not conjointly with any other. They 
were the representatives, each of his own colony, and not 
of any other ; each had authority to act in the name of 
his own colony, and not in that of any other ; each colony 



CONSTITUTIONAL LAW. 101 

gave its own vote by its own representatives, and not by 
those of any other colony. Of course, it was as separate 
and distinct colonies that they deliberated on the declara- 
tion of independence. When, therefore, they declare, in 
the adoptionof that measure, that they act as ' the repre- 
sentatives of the United States of America,' and ' in the 
name and by the authority of the good people of these co- 
lonies,' they must of course be understood as speaking in 
the character in which they had all along acted ; that is, 
as the representatives of separate and distinct colonies, 
and not as the joint representatives of any one people. A 
decisive proof of this, is found in the fact, that the colo- 
nies voted on the adoption of that measure in their sepa- 
rate character, each giving one vote by all its own repre- 
sentatives, who acted in strict obedience to specific instruc- 
tions from their respective colonies, and the members sign- 
ed the declaration in that way. So, also, when they de- 
clared that ' these United Colonies are, and of right ought 
to be, free and independent states,' they meant only that 
their respective communities, which until then had been 
dependent colonies, should thereafter be independent states, 
and that the same union which existed between them as 
colonies, should be continued between them as states. The 
measure under consideration looked only to their relation 
to the mother country, and not to their relation to one ano- 
ther ; and the sole question before them was, whether they 
should continue in a state of dependence on the British 
crown, or not. Having determined that they would not, 
they from that moment ceased to be colonies, and became 
states ; united, precisely as before, for the common purpose 
of achieving their common liberty. The idea of forming 
a closer union, by the mere act of declaring themselves in- 
dependent, could scarcely have occurred to any one of 
them. The necessity of such a measure must have been 
apparent to all, and it had long before engaged their at- 
tention in a different form. Men, of their wisdom and 
forecast, meditating a measure so necessary to their com- 
mon safety, would not have left it as a mere matter of in- 
ference from another measure. In point of fact, it was al- 
ready before them, in the form of a distinct proposition, 
and had been so ever since their first meeting in May 
9* 



102 LECTURES ON 

1775. (c) It is impossible to suppose, therefore, in common 
justice to the sagacity of congress, that they meant any 
thing more by the declaration of independence, than sim- 
ply to sever the tie which had theretofore bound them to 
England, and to assert the rights of the separate and dis- 
tinct colonies, as separate and independent states ; parti- 
cularly as the language which they use is fairly suscepti- 
ble of this construction. The instrument itself is enti- 
tled, ' the unanimous declaration of the thirteen United 
States of America;' of states, separate and distinct bo- 
dies politic, and not of ' one people' or nation, composed 
of all of them together ; ' united,' as independent states 
may be, by compact or agreement, and not amalgamated, 
as they would be, if they formed one nation or body po- 
litic. 



(c) A document which I have not met with elsewhere, but which 
may be found in the Appendix to professor Tucker's elaborate and 
instructive Life of Jefferson, affords important evidence upon this 
point. As early as May 1775, the plan of a " confederation and 
perpetual union" among the colonies, was prepared and proposed 
for adoption. It was not in fact adopted, but its provisions shew, 
in the strongest manner, in what light the colonies regarded their 
relation to one another. The proposed union was called "a firm 
League of friendship ;" each colony reserved to itself " as much as 
it might think proper of its own present laws, customs, rights, pri- 
vileges and peculiar jurisdictions, within its own limits ; and may 
amend its own constitution as may seem best to its own assembly 
or convention;" the external relations of the colonies were to be 
managed by their general government alone, and all amendments 
of their "constitution," as they termed it, were to be proposed by 
congress and "approved by a majority of the colony assemblies." 
It can scarcely be contended that this " league of friendship," this 
" confederation and perpetual union," would, if it had been adopt- 
ed, have rendered the people of the several colonies less identical 
than they were before. If, in their own opinion, they were " one 
people" already, no league or confederation was necessary, and no 
one would have thought of proposing it. The very fact, therefore, 
that it was proposed as a necessary measure " for their common de- 
fence against their enemies, for the security of their liberties and 
their properties, the safety of their persons and families, and their 
mutual and general welfare," proves that they did not consider 
themselves as already " one people," in any sense or to any extent 
which would enable them to effect those important objects. 

This proposition was depending and undetermined at the time of 
the declaration of independence. 



CONSTITUTIONAL LAW. 103 

" Is it true then, as the author supposes, that the ' colo- 
nies did not severally act for themselves, and proclaim 
their own independence? It is true that they acted to- 
gether ; but is it not equally true that each acted for itself 
alone, without pretending to any right or authority to bind 
any other 1 Their declaration was simply their joint ex- 
pression of their separate wills ; each expressing its own 
will, and not that of any other ; each bound by its own act, 
and not responsible for the act of any other. If the colo- 
nies had severally declared their independence through 
their own legislatures, and had afterwards agreed to unite 
their forces together, to make a common cause of their 
contest, and to submit their common interests to the ma- 
nagement of a common council chosen by themselves, 
wherein would their situation have been different ? And 
is it true that this declaration of independence ' was not an 
act done by the state governments then organized, nor by 
persons chosen by them V that ' it was emphatically the act 
of the whole people of the United Colonies, by the instru- 
mentality of their representatives chosen for that among 
other purposes'?' What representatives were those that 
were chosen by ' the people of the United Colonies 1 When 
and how were they chosen? Those who declared the co- 
lonies independent were chosen more than a year before 
that event ; they were chosen by the colonies separately, 
and, as has already been shewn, through the instrumen- 
tality of their own ' governments then organized ;' they 
were chosen, not for the ' purpose' of declaring the colo- 
nies independent, but of protecting them against oppres- 
sion, and bringing about a reconciliation with the parent 
country, upon fair terms, if possible. (Jefferson's Notes, 
1st ed. 128, 129.) If there were any other representa- 
tives than these concerned in the declaration of indepen- 
dence, if that act was performed by representatives chosen 
by ' the whole people of the colonies,' for that or any 
other purpose, if any such representatives could possibly 
have been chosen by the colonies as then organized, no 
historical record, that has yet met my view, contains one 
syllable of the matter. 

" The author seems to attach but little importance to 
the fact, that several of the colonies had established sepa- 
rate governments for themselves, prior to the declaration 



104 LECTURES ON 

of independence. He regards this as of little consequence ; 
because he thinks that the colonies so acted only in pur- 
suance of the recommendation of congress, and would 
not have ' presumed' to do it, ' without consulting con- 
gress upon the subject;' and because the governments so 
established were, for the most part, designed to be tempo- 
rary, and to continue only during the contest with England. 
Such recommendation vi^as given, in express terms, to New 
Hampshire and South Carolina, in November 1775, and 
to Virginia, in December of that year ; and on the 10th 
May 1776, ' it was resolved to recommend to the respective 
assemblies and conventions of the United Colonies, where 
no government sufficient to the exigencies of their affairs 
had been established, to adopt such a government as should, 
in the opinion of the representatives of the people, best 
conduce to the happiness and safety of their constituents 
in particular, and of America in general.' The preamble 
to this resolution was not adopted till the 15th May. (1 El- 
liott's Debates, 80, 83.) It is evident, from the language 
here employed, that congress claimed no power over the 
colonies as to this matter, and no right to influence or 
control them in the exercise of the important function of 
forming their own governments. It recommended only ; 
and, contemplating the colonies as separate and distinct, 
referred it to the assembly or convention of each, to es- 
tablish any form of government which might be acceptable 
to its own people. Of what consequence was it, whether 
the colonies acted upon the recommendation and advice of 
others, or merely upon their own will and counsels? With 
whatever motive the act was performed, it was one of su- 
preme and sovereign power, and such as could not have 
been performed except by a sovereign people. And 
whether the government so established was intended to 
last for ever, or only for a limited time, did not affect its 
character as an act of sovereign power. In point of fact, 
then, the colonies which established such governments did, 
by that very act, assert their sovereignty and independence. 
They had no power, under their charters, to change their 
governments. They could do so only by setting their 
charters aside, and acting upon their inherent, sovereign 
right : and this was revolution. In effect, therefore, many 
of the colonies had declared their independence prior to 



CONSTITUTIONAL LAW. 105 

the 4th July, 1776; they had commenced the revolution, 
and were considered by England as in a state of rebellion. 
Of Virginia this is emphatically true. Her declaration of 
rights was made on the 12th of June 1776; and her con- 
stitution was adopted on the 29th of the same month. 
This constitution continued until 1829. Her subsequent 
declaration of independence, on the 4th of July, in com- 
mon with the other colonies, was but a moire public, though 
not a more solemn affirmation of what she had previously 
done ; a pledge to the whole world, that what she had re- 
solved on in her separate character, she would unite with the 
other colonies in performing. She could not declare her- 
self free and independent more distinctly, in that form, 
than she had already done, by asserting her sovereign and 
irresponsible power, in throwing off her former govern- 
ment, and establishing a new one for herself (c?) 

(d) In point of fact, Virginia declared her independence on the 
15th of May 1776. The following beautiful allusion to that scene 
is extracted from an address delivered by judge Beverly Tucker, 
of William and Mary college, before the Petersburg lyceum on the 
15th May 1839 : 

" That spectacle, on this day sixty-three years, Virginia exhi- 
bited to the world ; and the memory of that majestic scene it is 
now my task to rescue from oblivion. It was on that day that she 
renounced her colonial dependence on Great Britain, and separa- 
ted herself forever from that kingdom. Then it was that, bursting 
the manacles of a foreign tyranny, she, in the same moment, im- 
posed upon herself the salutary restraints of law and order. In 
that moment she commenced the work of forming a government, 
complete within itself; and having perfected that work, she, on 
the 29th of June in the same year, performed the highest function 
of independent sovereignty, by adopting, ordaining and establish- 
ing the constitution under which all of us were born. Then it was 
that, sufficient to herself for all the purposes of government, she 
prescribed that oath of fealty and allegiance to her sole and sepa- 
rate sovereignty, which all of us, who have held any office under 
her authority, have solemnly called upon the Searcher of hearts to 
witness and record. In that hour, gentlemen, it could not be cer- 
tainly known, that the other colonies would take the same decisive 
step. It was, indeed, expected. In the same breath in which she 
had declared her own independence, Virginia had advised it. She 
had instructed her delegates in the general congress to urge it ; 
and it was by the voice of one of her sons, whose name will ever 
proudly live in her history, that the word of power was spoken, at 
which the chain that bound the colonies to the parent kingdom fell 
asunder, 'as flax that severs at the touch of fire.' But even then, 
. and while the terms of the general declaration of independence 



106 LECTURES ON 

" There is yet another view of this subject, which can- 
not be properly omitted. It has already been shewn that, 
prior to the revolution, the colonies were separate and dis- 

were yet unsettled, hers had already gone forth. The voice of her 
defiance was already ringing in the tyrant's ears; hers was the cry 
that summoned him to the strife; hers was the shout that invited 
his vengeance : '•Me! me! ^dsum qui feci; in Tne, convertite fer- 
rum.' " 

This beautiful address, abounding in patriotic sentiments, and 
sound political doctrines, clothed in the richest language, ought to 
be in the hands of every citizen, and particularly of those of Vir- 
ginia. The following extract from the journals of the convention, 
containing the history of this interesting event, cannot fail to be 
acceptable to every American reader: 

'■'■Wednesday, May 15th, 1776. 

" The convention, then, according to the order of the day, re- 
solved itself into a committee on the state of the colony, and, after 
some time spent therein, Mr. President resumed the chair, and Mr. 
Gary reported that the committee had, according to order, had un- 
der their consideration the state of the colony, and had come to the 
following resolutions thereupon ; which he read in his place, and af- 
terwards delivered in at the clerk's table, where the same were 
again twice read, and unanimously agreed to ; one hundred and 
twelve members being present. 

" For as much as all the endeavours of the United Colonies, by 
the most decent representations and petitions to the king and par- 
liament of Great Britain, to restore peace and security to America 
under the British government, and a reunion with that people, up- 
on just and liberal terms, instead of a redress of grievances, have 
produced, from an imperious and vindictive administration, in- 
creased insult, oppression, and a vigorous attempt to effect our 
total destruction. By a late act, all these colonies are declared to 
be in rebellion, and out of the protection of the British crown, 
our properties subjected to confiscation, our people, when cap- 
tivated, compelled to join in the plunder and murder of their re- 
lations and countrymen, and all former rapine and oppression of 
Americans declared legal and just. Fleets and armies are raised, 
and the aid of foreign troops engaged to assist these destructive 
purposes. The king's representative in this colony hath not only 
withheld all the powers of government from operating for our 
safety, but, having retired on board an armed ship, is carrying on 
a piratical and savage war against us ; tempting our slaves by every 
artifice to resort to him, and training and employing them against 
their masters. 

" In this state of extreme danger, we have no alternative left, 
but an abject submission to the will of those overbearing tyrants, 
or a total separation from the crown and government of Great Bri- 
tain, uniting and exerting the strength of all America for defence, 



CONSTITUTIONAL LAW. 107 

tinct, and were not, in any political sense, or for any pur- 
pose of government, ' one people.' The sovereignty over 
them was in the British crown ; but that sovereignty was 
not jointly over all, but separately over each, and might 
have been abandoned as to some, and retained as to others. 
The declaration of independence broke this connexion. 
By that act, and not by the subsequent recognition of their 
independence, the colonies became free states. What then 
became of the sovereignty of which we speak ? It could 
not be in abeyance; the moment it was lost by the British 
crown it must have vested somewhere else. Doubtless it 
vested in the states themselves. But as they were sepa- 
rate and distinct as colonies, the sovereignty over one 

and forming alliances with foreign powers for commerce and aid 
in war. Wherefore, appealing to the Searcher of all hearts for the 
sincerity of former declarations, expressing our desire to preserve 
our connexion with that nation, and that we are driven from that 
inclination by their wicked councils, and the eternal laws of self- 
preservation ; resolved unanimously, that the delegates appointed 
to represent this colony in general congress, be instructed to pro- 
pose to that respectable body, to declare the United Colonies free 
and independent states, absolved from all allegiance to, or depen- 
dence upon, the crown or parliament of Great Britain ; and that 
they give the assent of this colony to that declaration, and to what- 
ever measures may be thought proper and necessary by the con- 
gress, for forming foreign alliances, and a confederation of the co- 
lonies, at such time and in such manner as to them may seem best. 
Provided, that the power of forming government for, and the regu- 
lations of the internal concerns of each colony, be left to the re- 
spective colonial legislatures. 

" Resolved, unanimously, that a committee be appointed to pre- 
pare a declaration of rights, and such a plan of government, as 
will be most likely to maintain peace and order in this colony, and 
secure substantial and equal liberty to the people. 

" And a committee was appointed of the following gentlemen : 
Mr. Archibald Gary, Mr. Meriwether Smith, Mr. Mercer, Mr. 
Henry Lee, Mr. Treasurer, Mr. Henry, Mr. Dandridge, Mr. Ed- 
mund Randolph, Mr. Gilmer, Mr. Bland, Mr. Digges, Mr. Car- 
rington, Mr. Thomas Ludwell Lee, Mr. Cabell, Mr. Jones, Mr. 
Blair, Mr. Fleming, Mr. Tazewell, Mr. Richard Gary, Mr. Bullit, 
Mr. Watts, Mr. Banister, Mr. Page, Mr. Starke, Mr. David Mason, 
Mr. Adams, Mr. Read and Mr. Thomas Lewis." 

It is impossible to contemplate this proceeding on the part of 
Virginia, without being convinced that she acted from her own 
free and sovereign will; and that she, at least, did "presume" to 
establish a government for herself, without the least regard to the 
recommendation or the pleasure of congress. 



108 



LECTURES ON 



could not vest, either in whole or in part, in any other. 
Each took to itself that sovereignty which applied to itself, 
and for which alone it had contended with the British 
crown, to wit, the sovereignty over itself Thus each 
colony became a free and sovereign state. This is the 
character which they claim in the very terms of the 
declaration of independence ; in this character they formed 
the colonial government, and in this character that go- 
vernment always regarded them. Indeed, even in the 
earlier treaties with foreign powers, the distinct sove- 
reignty of the states is carefully recognized. Thus, 
the treaty of alliance with France, in 1778, is made be- 
tween ' the most Christian king and the United States of 
North America, to wit : New Hampshire, Massachusetts 
Bay, Rhode Island, Connecticut,' &c., enumerating them 
all by name. The same form is observed in the treaty of 
amity and commerce with the states general of the United 
Netherlands, in 1782, and in the treaty with Sweden, in 
1783. In the convention with the Netherlands, in 1782, 
concerning recaptured vessels, the names of the states are 
not recited, but ' the United States of America' is the style 
adopted ; and so also in some others. This circumstance 
shews that the two forms of expression were considered 
equipollent ; and that foreign nations, in treating with the 
revolutionary government, considered that they treated with 
distinct sovereignties, through their common agent, and not 
with a new nation, composed of all those sovereign coun- 
tries together. It is true, they treated with them jointly, 
and not severally ; they considered them all bound to the 
observance of their stipulations, and they believed that the 
common authority, which was established between and 
among them, was sufficient to secure that object. The 
provisional articles with Great Britain, in 1782, by which 
our independence was acknowledged, proceed upon the 
same idea. The first article declares, that ' His Britannic 
Majesty acknowledges the said United States, to loit: New 
Hampshire, Massachusetts Bay, Rhode Island and Provi- 
dence Plantations, Connecticut, New York, New Jersey, 
Pennsylvania, Delaware, Maryland, Virginia, North Caro- 
lina, South Carolina and Georgia, to be free, sovereign and 
independent states ; that he treats with them as such,' &c. 
Thus the very act, by which their former sovereign re- 



CONSTITUTIONAL LAW. 109 

leases them from their allegiance to him, confirms to each 
one by name the sovereignty within its own limits, and ac- 
knowledges it to be a ' free, sovereign and independent 
state;' united, indeed, with all the others, but not as form- 
ing with them any new and separate nation. The lan- 
guage employed is not suited to convey any other idea. If 
it had been in the contemplation of the parties, that the 
states had merged themselves into a single nation, some- 
thing like the following formula would naturally have sug- 
gested itself as proper. ' His Britannic Majesty acknow- 
ledges that New Hampshire, Massachusetts Bay, &c., 
former colonies of Great Britain, and now united together 
as one people, are a free, sovereign and independent state,' 
&LC. The difference between the two forms of expression, 
and the strict adaptation of each to the state of things 
which it contemplates, will be apparent to every reader. 

" It requires strong and plain proof to authorize us to 
say, that a nation once sovereign has ceased to be so. And 
yet our author requires us to believe this of the colonies, 
although he acknowledges that he cannot tell, with any 
degree of confidence or precision, when, how, or to what 
extent the sovereignty, which they acquired by declaring 
their independence, was surrendered. According to him, 
the colonies are to be presumed to have yielded this sove- 
reignty to a government established by themselves for a 
special and temporary purpose, which existed only at their 
will, and by their aid and support; whose powers were 
wholly undefined, and, for the most part, exercised by 
usurpation on its part, and legitimated only by the acqui- 
escence of those who appointed it ; whose authority was 
without any adequate sanction which it could itself apply, 
and which, as to all the important functions of sovereignty, 
was a mere name — the shadow of power without its sub- 
stance ! If the fact was really so, I venture to affirm that 
the history of the world affords no similar instance of folly 
and infatuation. 

" But, whatever may have been the condition of the co- 
lonies prior to 1781, there is no room for doubt on the 
subject, after the final ratification of the articles of con- 
federation in that year. Those articles declare that ' each 
state retains its sovereignty, freedom and independence, 
and every power, jurisdiction and right, which is not, by 
10 



110 LECTURES ON 

this confederation, expressly delegated to the United States, 
in congress assembled.' The obvious construction of this 
clause requires that we should apply these latter words, 
only to 'powers, jurisdiction and rights;' some of which, 
as enjoyed by the states under the previous government, 
were clearly surrendered by the articles of confederation. 
But their entire sovereignty, their entire freedom, and their 
entire independence, are reserved, for these are not partible. 
Indeed, this is clear enough, from the provisions of that in- 
strument, which, throughout, contemplate the states as 
free, sovereign and independent. It is singular, too, that 
it should escape the observation of any one, that the very 
fact of adopting those articles, and the course pursued in 
doing so, attest, with equal clearness and strength, the 
previous sovereignty and independence of the states. What 
had the states in their separate character to do with that 
act, if they formed altogether ' one people V And yet the 
states, and the states alone, performed it, each acting for 
itself, and binding itself. The articles were confirmed by 
ten states, as early as 1778, by another in 1779, and by 
another in 1780; and yet they were not obligatory until 
Maryland acceded to them, 1781. Nothing less than the 
ratification of them by all the states, each acting separately 
for itself, was deemed suflicient to give them any binding 
force or authority. 

" There is much force and meaning in the word ' re- 
tains,' as it occurs in the clause above quoted. Nothing 
can properly be said to be retained, which was not possessed 
before ; and, of course, the states possessed before ' sove- 
reignty, freedom and independence.' These they retained 
without any qualification, or limitation, and they also re- 
tained every ' power, jurisdiction and right,' which they did 
not then expressly surrender. 

" If these views of the subject be not wholly deceptive, 
our author has hazarded, without due caution, the opinion 
that the colonies formed ' one people,' either before or af- 
ter the declaration of independence ; and that they are not 
to be regarded as sovereign states, after that event. For 
myself, I profess my utter inability to perceive, in their con- 
dition, any nearer approach to ' political personality or in- 
dividuality,' than may be found in a mere league or con- 
federation between sovereign and independent states; and 
a very loose confederation theirs undoubtedly was." 



CONSTITUTIONAL LAW. Ill 



LECTURE V. 

Before I proceed to any examination of the present con- 
stitution, which was the next step in the political progress 
of the United States, it may not be unprofitable to look 
back to the confederation, and take a rapid view of the 
causes which led to the adoption of another form of go- 
vernment. 

Whatever may be the truth, in a speculative point of 
view, as to the American colonies having constituted one 
people, history leaves us no doubt, that long anterior to 
the revolution, efforts had been made in vain for the for- 
mation of associations among them, for their mutual sup- 
port and protection. They are said to have been jealous 
of each other's prosperity, and divided by policy, institu- 
tions, prejudice and manners ;(«) and even after the com- 
mencement of the revolution, when the pressure of Bri- 
tish power made some league or association essential, they 
seem to have felt that it was the true path of safety, to re- 
tain all sovereign powers in their own hands, except those, 
which imperious necessity demanded should be placed in 
the hands of the irregular revolutionary government. From 
the batttle of Lexington in 1775, to the month of August 
1778, a war with one of the most powerful nations of the 
globe, was waged by a congress composed of delegates 
from the states, appointed either by state legislatures, or 
conventions; and deriving its powers partly from the com- 
missions of its members, but mainly from the necessities 
of the time. (6) The desperate struggle at length led to 
the projection of a league or confederation, which was not 
however ratified by all the states till 1781. By the articles 
of confederation, congress was invested with the powers of 
peace and war, of sending and receiving ambassadors, of 
making treaties with certain restrictions, of coining and 
borrowing money, of emitting bills of credit, of ascertain- 
ing the necessary sums, and troops and ships required for 

(a) 1 Kent. 205. 
(&)3Dall. 91. 



112 LECTURES ON 

the public service, and of appropriating money ; together 
with some other powers of minor character. But the most 
important of those above mentioned, were unaccompanied 
by any power to carry them into execution. Most of the 
granted powers, required for their exercise, the assent of 
nine states ; and when they were exercised, they depended 
altogether upon the faith and punctuality of the states, in 
complying with requisitions. There was no power to raise 
a revenue or lay a tax ; for the authority as to this matter, 
only extended to " ascertaining" the suras that each state 
was to pay. They could enforce no law, secure no right, 
and though entitled to send ambassadors, they had no au- 
tTiority to raise the means of paying them. They could 
contract debts, but had no means of discharging them. 
They could pledge the public faith, but could not redeem 
it. They could make treaties, but not enforce them, and 
every power which did not execute itself, might be tram- 
pled upon with impunity. In short, in the language of ge- 
neral Washington, " the confederation was a shadow with- 
out the substance;" congress could declare every thing, 
but do nothing ; borrow money, but not repay a dollar ; coin 
money without the ability of purchasing bullion, and make 
requisitions which were not complied with, or very une- 
qually, if at all. It has been justly observed, (c) " that a 
government authorized to declare war, but relying on in- 
dependent states for the means of prosecuting it, capable 
of contracting debts, and of pledging the public faith for 
their payment, but depending on thirteen distinct sove- 
reignties for the preservation of that faith, could only be 
rescued from ignominy and contempt by finding those so- 
vereignties administered by men exempt from the passions 
incident to human nature !" A hopeless expectation sure- 
ly ! and experience soon demonstrated(f?) that the great 
and radical vice in the construction of the confederation, 
was in the principle of legislation for states and govern- 
ments in their corporate or collective capacities, as contra- 
distinguished from the individuals of whom they consist. 
A consequence of this was the want of power in congress 
to give a sanction to its laws. They had no power to ex- 

(c) 5 Mars. Life of Wash. 31. 

(d) See the Fed. No. 15. 



CONSTITUTIONAL LAW. 113 

act obedience or to punish infraction, for they had no ex- 
press authority to exercise force, and they had no power 
except what was expressly given. Hence when they made 
requisitions, it depended upon the good will or the energy 
of the state legislatures, whether they complied at all ; and 
as congress had no power to lay or levy taxes, or to raise 
the revenues necessary for the ordinary expenses of the 
government, a noncompliance by the states left empty the 
treasury of the Union. Thus it appears, that the requisi- 
tions for the payment of the interest on the domestic debt 
from 1782 to 1786, amounted to more than six millions, 
and up to March 1787, only one million was paid : and 
from November 1784, to January 1786, only 483,000 dol- 
lars had been paid into the national treasury. 

Another and most important defect of the confederation, 
was the want of power in congress to regulate foreign and 
domestic commerce; thus making no provision against 
one of the most fruitful sources of dissention between the 
states. Nor was this all. Without some general power 
over the subject, the commerce of the Union was fated to 
embarrassment and to languishing. During the war, it 
had been nearly annihilated by the superior naval power of 
Great Britain, and the return of peace enabled her in a 
great measure to monopolize all the benefits of our trade. 
British ships, with their commodities, had free admission 
into our ports, while American ships and exports were 
loaded with heavy exactions, or were prohibited from en- 
try into British ports. In April 1784, congress asked the 
power for fifteen years only to prohibit the importation and 
exportation of goods in the ships of nations with whom 
we had no commercial treaties, and to prohibit subjects of 
foreign nations from importing any goods not the produce 
or manufacture of the dominions of their own sovereign. 
It was refused, as was also a subsequent proposal to grant 
the power of regulating commerce and laying duties, 
though those duties were to be collected by and paid over 
to the states. This proposition did not find sufficient coun- 
tenance even in congress itself for its passage by that body, 
and thus the regulation of commerce by congress, which 
under our present constitution has been found to contri- 
bute so largely to our national prosperity, was rejected, 
even in its least objectionable and least alarming form. 
10* 



H4 LECTURES ON 

There were other defects seriously urged against the 
confederation, which justified doubts of its efficacy as a 
bond of union, or as an enduring scheme of government. 
At length commissioners were appointed by the state of 
Virginia, (e) to meet commissioners from other states, to 
take into consideration the trade of the United States, and 
the relative situation of the trade of the states ; and to re- 
port such an act on the subject, as when ratified would en- 
able congress to provide the necessary regulations. The 
commissioners of five states only, met at Annapolis in Sep- 
tember 1786, and recommended the appointment of other 
commissioners, to meet at Philadelphia in May thereafter, 
"to take into consideration the situation of the United 
States, and to devise such further provisions as should ap- 
pear to them necessary to render the constitution of the 
federal government adequate to the exigencies of the 
Union ; and to report also such an act to congress as when 
agreed to by it, and ratified by the states, would effectually 
provide for the same." In February 1787, a motion was 
accordingly moved, and carried in congress, recommend- 
ing a convention in Philadelphia, for the purpose of revi- 
sing and amending the articles of confederation. The 
convention met in May, (Rhode Island alone having de- 
clined to send representatives,) and in September 1787, 
adopted the present constitution ; and directed it to be laid 
before congress, recommending, at the same time, that it 
should be submitted to conventions of delegates chosen in 
each state by the people thereof, under a recommenda- 
tion of its legislature for their assent and ratification. 
Conventions accordingly met, and the constitution was at 
length finally adopted with amendments, though the ratifi- 
cation of North Carolina was delayed till November 1789, 
and that of Rhode Island until May 1790. During the 
respective intervals, those states were altogether sovereign 
and independent. For nine states having adopted the con- 
stitution, the old confederation was at an end, and the new 
government went into operation on the 4th of March 1789, 
at which date, neither of those states were members of the 
Union. General Washington was sworn into office on the 
30th of April 1789. 

(e) The commissioners for Virginia who acted, were Edmund 
Randolph, James Madison and St. George Tucker. 



CONSTITUTIONAL LAW. 115 

After this rapid sketch of the origin and adoption of the 
constitution of the United States, I shall now proceed to 
the consideration of its nature, presenting the student, 
however, in the first instance, with judge Story's view of 
the same matter, as he has given it to us in the 3d chapter 
of the 3d book of his Commentaries : 

" § 308. In the first place," says he, " what is the true 
nature and import of the instrument ? Is it a treaty, a 
convention, a league, a contract, or a compact 1 Who are 
the parties to it ? By whom was it made ? By whom was 
it ratified 1 What are its obligations 1 By whom, and in 
what manner may it be dissolved? Who are to determine 
its validity and construction ? Who are to decide upon 
the supposed infractions and violations of it ? These are 
questions often asked, and often discussed, not merely for 
the purpose of theoretical speculation, but as matters of 
practical importance, and of earnest and even of vehement 
debate. 

"§ 310. It has been asserted by a learned commenta- 
tor (/") that the constitution of the United States is an ori- 
ginal, written, federal, and social compact, freely, volun- 
tarily, and solemnly entered into by the several states, and 
ratified by the people thereof respectively ; whereby the 
several states, and the people thereof, respectively have 
bound themselves to each other, and to the federal govern- 
ment of the United States, and by which the federal go- 
vernment is bound to the several states and to every citi- 
zen of the United States. The author proceeds to ex- 
pound every part of this definition at large. It is (says 
he) a compact, by which it is distinguished from a charter 
or grant, which is either the act of a superior to an infe- 
rior, or is founded upon some consideration moving from 
one of the parties to the other, and operates as an ex- 
change or sale.(g-) But here the contracting parties, whe- 
ther considered as states in their political capacity and 
character, or as individuals, are all equal ; nor is there any 
thing granted from one to another ; but each stipulates to 

(/) 1 Tucker's Black. Comm. App. note D, p. 140 et seq.* 
{g) 1 Tucker's Black. Comm. App. note D, p. 141. 

[* The views of judge Tucker, as here presented, have generally the concur- 
rence of that party in the United States which is usually denominated the state- 
rights party.] 



116 LECTURES ON 

part with, and receive the same thing precisely without 
any distinction or difference between any of the parties. 

"§ 311. It is a federal compact. (/«) Several sovereign 
and independent states may unite themselves together by 
a perpetual confederation, without each ceasing to be a 
perfect state. They will together form a federal republic. 
The deliberations in common will offer no violence to each 
member, though they may in certain respects put some con- 
straint on the exercise of it in virtue of voluntary engage- 
ments. The extent, modifications, and objects of the fe- 
deral authority are mere matters of discretion. (^) So long 
as the separate organization of the members remains, and, 
from the nature of the compact, must continue to exist 
both for local and domestic, and for federal purposes, the 
union is in fact, as well as in theory, an association of 
states, or a confederacy. 

"§ 313. It may be proper to illustrate the distinction 
between federal compacts and obligations, and such as are 
social, by one or two examples. (^) A federal compact, 
alliance, or treaty, is an act of the state or body politic, 

(A) Mr. Jefferson asserts, that the constitution of the United 
States is a compact between the states. " They entered into a 
compact," says he, (in a paper designed to be adopted by the le- 
gislature of Virginia, as a solemn protest,) " which is called the 
Constitution of the United States of America, by which they 
agreed to unite in a single government, as to their relations with 
each, and with foreign nations, and as to certain other articles 
particularly specified."* It would, I imagine, be very difficult to 
point out when, and in what manner, any such compact was made. 
The constitution was neither made, nor ratified by the states, as 
sovereignties, or political communities. It was framed by a con- 
ventiont proposed to the people of the states for their adoption by 
congress; and was adopted by state conventions — the immediate 
representatives of the people. 

(i) 1 Tucker's Black. Comm. Appx. note D, p. 141. 

(k) Id. 145. 

* 4 Jefferson's Coiresp. 415. 

[t To prove that the constitution was not made by the states, our author says 
it was framed by a convention. A convention of whom .'' Of the delegates of tliir- 
teen separate and distinct communities, each responsible to its own state only, 
voting by states, and each state having but one vote. These delegates were ap- 
pointed by the state legislatures, and were subject to their control. This con- 
vention was called at the suggestion of Jive states, by the congress of the United 
States, which represented states. The constitution was recommended by it to 
the states, and the states each called a convention of their own, represeriling it- 
self only, and ratified the constitution. Throughout the whole the action was 
state action. There was no nationality about it. See the remarks, Lectures, p. 
43, 86, 87.] 



CONSTITUTIONAL LAW, 117 

and not of an individual. On the contrary, a social com- 
pact is understood to mean the act of individuals about to 
create and establish a state or body politic among them- 
selves. If one nation binds itself by treaty to pay a cer- 
tain tribute to another ; or if all the members of the same 
confederacy oblige themselves to furnish their quotas of a 
common expense, when required ; in either of these cases, 
the state or body politic only, and not the individual, is an- 
swerable for this tribute or quota. This is, therefore, a 
federal obligation. But, where by any compact, express or 
implied ; a number of persons are bound to contribute their 
proportions of the common expenses, or to submit to all 
laws made by the common consent ; and where in default 
of compliance with these engagements the society is au- 
thorized to levy the contribution, or to punish the person 
of the delinquent ; this seems to be understood to be more 
in the nature of a social, than a federal obligation. (/) 

" § 314. It is an original compact. Whatever political 
relation existed between the American colonies antece- 
dent to the revolution, as constituent parts of the British 
empire, or as dependencies upon it, that relation was com- 
pletely dissolved, and annihilated from that period. From 
the moment of the revolution they became severally inde- 
pendent and sovereign states, possessing all the rights, ju- 
risdictions, and authority that other sovereign states, how- 
ever constituted, or by whatever title denominated, possess; 
and bound by no ties, but of their own creation, except 
such, as all other civilized nations are equally bound by, 
and which together constitute the customary law of na- 
tions. (?«)* 

(I) 1 Tucker's Black. Comm. App. note D, p. 145. 

(m) Id. 150. — These views are very different from those which 
Mr. Dane has, with so much force and perspicuity, urged in his 
Appendix to his Abridgment to the Law, § 2, p. 10, &c. 

" In order correctly to ascertain this rank, this linking together, 
and this subordination, we must go back as far as January 1774, 

[* This seems to me strictly true. Judge Story obviously sides 
with Mr. Dane, whose notions I deem as unsound as they are no- 
vel. Such absurdities scarcely admit of a grave and calm refuta- 
tion. I shall content myself, therefore, with referring to what is 
said a7ite, p. 36, and seq., 86, and seq., and with contrasting with 
these notions, the authoritative opinions of judges Iredell and 
Chase, p. 44, 46, and 92.] 



118 LECTURES ON 

" § 315. It is a written compact. Considered as a fe- 
deral compact or alliance between the states, there is 
nothing new or singular in this circumstance, as all na- 
tional compacts since the invention of letters, have proba- 
bly been reduced to that form. But considered in the 
light of an original social compact, the American revolu- 
tion seems to have given birth to this new political phe- 
nomenon. In every state a written constitution was 
framed, and adopted by the people both in their individual 
and sovereign capacity and character. (ra) 

"§316. It is a compact freely, voluntarily and so- 
lemnly entered into by the several states, and ratified by 

when the thirteen states existed constitutionally, in the condition 
of thirteen British colonies, yet, de facto, the people of them exer- 
cised original, sovereign power in their institution in 1774, of the 
continental congress; and, especially, in June 1775, then vesting 
in it the great national powers, that will be described ; scarcely 
any of which were resumed. The result will shew, that, on revo- 
lutionary principles, the general government was, by the sovereign 
acts of this people, first created de novo, and de facto instituted ; 
and by the same acts, the people vested in it very extensive pow- 
ers, which have ever remained in it modified and defined by the 
articles of confederation, and enlarged and arranged anew by the 
constitution of the United States — 2d. that the state governments 
and states, as free and independent states, were, July 4th, 1776, 
created by the general government, empowered to do it by the peo- 
ple, acting on revolutionary principles, and in their original, sove- 
reign capacity ; and that all the state governments, as such, have 
been instituted during the existence of the general government, 
and in subordination to it, and two thirds of them since the con- 
stitution of the United States was ordained and established by 
all the people thereof; in that sovereign capacity. These state 
governments have been, by the people of each state, instituted 
under, and, expressly or impliedly, in subordination to the ge- 
neral government, which is expressly recognized by all to be su- 
preme law ; and as the power of the whole is, in the nature of 
things, superior to the power of a part, other things being equal, 
the power of a state, a part, is inferior to the power of all the 
states. Assertions that each of the twenty-four states is completely 
sovereign, that is, as sovereign as Russia, or France, of course as 
sovereign as all the states, and that this sovereignty is above ju- 
dicial cognizance, merit special attention." 

(n) 1 Tucker's Black. Comm. App. note D, p. 153. — There is an 
inaccuracy here ; Connecticut did not form a constitution until 
1818, and existed until that period under her colonial charter. 
Rhode Island still is without any constitution, and exercises the 
powers of government under her colonial charter. 



CONSTITUTIONAL LAW. 119 

the people thereof respectively ; freely, there being nei- 
ther external nor internal force or violence to influence, or 
protnote the measure; the United States being at peace 
with all the world and in perfect tranquillity in each state ; 
voluntarily, because the measure had its commencement in 
the spontaneous acts of the state legislatures, prompted by 
a due sense of the necessity of some change in the exist- 
ing confederation ; and solemnly, as having been discussed, 
not only in the general convention, which proposed and 
framed it; but afterwards in the legislatures of the several 
states; and finally in the conventions of all the states, by 
whom it was adopted and ratified, (o) 

" § 317. It is a compact by which the several states and 
the people thereof respectively have bound themselves to 
each other, and to the federal government. The consti- 
tution had its commencement with the body politic of the 
several states ; and its final adoption and ratification was 
by the several legislatures referred to, and completed by 
conventions especially, called and appointed for that pur- 
pose in each state. The acceptance of the constitution 
was not only an act of the body politic of each state, but 
of the people thereof respectively in their sovereign cha- 
racter and capacity. The body politic was competent to 
bind itself, so far as the constitution of the state permit- 
ted. (p) But not having power to bind the people in cases 
beyond their constitutional authority, the assent of the 
people was indispensably necessary to the validity of the 
compact, by which the rights of the people might be di- 
minished, or submitted to a new jurisdiction, or in any 
manner affected. From hence, not only the body politic 
of the several states, but every citizen thereof, may be 
considered as parties to the compact, and to have bound 
themselves reciprocally to each other for the due obser- 
vance of it; and also to have bound themselves to the fe- 
deral government, whose authority has been thereby cre- 
ated and established. (9)* 

(o) 1 Tucker's Black. Coram, note D, p. 155, 156. 
{p) Id. 169. 
{q) Id. 170. 

[*The legislature of a state can never of itself make a new con- 
stitution, since in so doing it must enlarge or limit its powers other- 



120 LECTURES ON 

" § 318. Lastly. It is a compact, by which the fe- 
deral government is bound to the several states, and 
to every citizen of the United States. Although the fe- 
deral government can in no possible view be considered 
as a party to a compact made anterior to its existence, 
and by which it was in fact created ; yet, as the creature 
of that compact, it must be bound by it to its creators, the 
several states in the Union, and the citizens thereof Hav- 
ing no existence, but under the constitution, nor any rights 
but such as that instrument confers ; and those very rights, 
being in fact duties, it can possess no legitimate power, 
but such as is absolutely necessary for the performance of 
a duty prescribed, and enjoined by the constitution. (r) Its 
duties then became the exact measure of its powers ; and 
whenever it exerts a power for any other purpose, than the 
performance of a duty prescribed by the constitution, it 
transgresses its proper limits, and violates the public trust. 
Its duties being moreover imposed for the general benefit 
and security of the several states in their political charac- 
ter, and of the people, both in their sovereign and indi- 
vidual capacity, if these objects be not obtained, the go- 
vernment does not answer the end of its creation. It is, 
therefore, bound to the several states respectively, and to 
every citizen thereof, for the due execution of those du- 
ties, and the observance of this obligation is enforced un- 
der the solemn sanction of an oath from those, who ad- 
minister the government. 

" § 319. Such is a summary of the reasoning of the learn- 
ed author, by which he has undertaken to vindicate his 
views of the nature of the constitution. That reasoning 
has been quoted at large, and for the most part in his own 
words; not merely as his own, but as representing, in a 
general sense, the opinions of a large body of statesmen 
and jurists in different parts of the Union, avowed and 
acted upon in former times ; and recently revived under 

(?•) 1 Tucker's Black. Comm. noteD, p. 170. 

icise than as prescribed by the constitution which gave it being. 
It can only refer the matter to the action of the people of its own 
state through a convention. And the action of such convention is 
state action, because the convention represents a separate and in- 
dependent state. See Story, 330.] 



CONSTITUTIONAL LAW. 121 

circumstances, which have given them increased impor- 
tance, if not a perilous influence. (s) 

" § 320. It is wholly beside our present purpose to en- 
gage in a critical commentary upon the different parts of 
this exposition. It will be sufficient for all the practical 
objects we have in view, to suggest the difficulties of main- 

(s) Many traces of these opinions will be found in the public de- 
bates in the state legislatures and in congress at different periods. 
In the resolutions of Mr. Taylor, in the Virginia legislature in 
1798, it was resolved, "that this assembly doth explicitly and pe- 
remptorily declare, that it views the powers of the federal govern- 
ment as resulting from the compact, to Schick the states are par- 
ties." — See Dane's Apendix, p. 17. The original resolution had 
the word '■'■alone" after "states," which was struck out upon the 
motion of the original mover, it having been asserted in the debate, 
that the jjcople were parties also, and by some of the speakers, that 
the people were exclusively parties. 

The Kentucky resolutions of 1797, (which were drafted by Mr. 
Jefferson,) declare "that to this compact [the federal constitution] 
each state acceded as a state, and is an integral party." North 
American Review, October 1830, p. 501, 545. In the resolutions 
of the senate of South Carolina, in November 1817, it is declared, 
" that the constitution of the United States is a compact between 
the people of the different states with each other, as separate and 
independent sovereignties." In November 1799, the Kentucky le- 
gislature passed a resolution, declaring, that the federal states had 
a right to judge of any infraction of the constitution, and, that a 
nullification by those sovereignties of all unauthorized acts done 
under colour of that instrument is the rightful remedy. North 
American Review, Id. 503. Mr. Madison, in the Virginia report 
of 1800, re-asserts the right of the states, as parties, to decide upon 
the unconstitutionality of any measure. Report, p. 6, 7, 8, 9. The 
Virginia legislature, in 1829, passed a resolution, declaring, that 
"the constitution of the United States being a federative compact 
between sovereign states, in construing which no common arbiter 
is known, each state has the right to construe the compact for it- 
self."* Mr. vice president Calhoun's letter to governor Hamilton, 
of August 28, 1832, contains a very elaborate exposition of this 
among otiier doctrines. 

Mr. Dane, in his Appendix, (§ 3, p. 11,) says, that for forty years 
one great party has received the constitution, as a federative com- 
pact among the states, and the other great party, not as such a com- 
pact, but in the main, national and popular. The grave debate in 
the senate of the United States, on Mr. Foot's resolution, in the 
winter of 1830, deserves to be read for its able exposition of the 
doctrines maintained on each side. Mr. Dane makes frequent re- 
ferences to it in his Appendix. — 4 Elliot's Debates, 315 to 330. 

*3 American Annual Register; Local History, 131. 
11 



122 LECTURES ON 

taining its leading positions, to expound the objections, 
which have been urged against them, and to bring into no- 
tice those opinions, which rest on a very different basis of 
principles. 

" § 321. The obvious deductions,* which may be, and 
indeed have been, drawn from considering the constitution 
as a compact between the states, are, that it operates as a 
mere treaty, or convention between them, and has an obli- 
gatory force upon each state no longer, than suits its plea- 
sure, or its consent continues ; that each state has a right 
to judge for itself in relation to the nature, extent and ob- 
ligations of the instrument, without being at all bound by 
the interpretation of the federal government, or by that of 
any other state ; and that each retains the power to with- 
draw from the confederacy and to dissolve the coniiex- 
ion, when such shall be its choice ; and may suspend the 
operations of the federal government, and nullify its acts 
within its own territorial limits, whenever, in its own opi- 
nion, the exigency of the case may require. (^) These con- 

(t) Virginia, in the resolutions of her legislature on the tariff, in 
February 1829, declared, " that there is no common arbiter to con- 
strue the constitution ; being a federative coTnpact betioeen sove- 
reign states, each state has a right to construe the compact for it- 
self." 9 Dane's Abridg. ch. 187, art. 20, § 14, p. 589. See also 
North American Review, October 1830, p. 488 to 528. The reso- 
lutions of Kentucky of 1798, contain a like declaration, that "to 
this compact [the constitution] each state acceded as a state, and 
is an integral party ; that the government created by this compact 
was not made the exclusive, or final judge of the powers delega- 
ted to itself, &c. ; but that, as in all other cases of compact among 
parties having no common judge, each party has an equal right to 
judge for itself, as well of infractions, as of the mode and measure 
of redress." North American Review, October 1830, p. 501. The 
Kentucky resolutions of 1799, go further, and assert, "that the 
several states who formed that instrument, [the constitution,] be- 
ing sovereign and independent, have the unquestionable right to 
judge of its infraction; and that a nullification by those sovereign- 

[* How far these deductions are disavowed, and what principles 
are considered as legitimate, in reference to the right of a state to 
judge of infractions, and to determine for itself, the nature and ex- 
tent of its obligations, will be hereafter shewn. It will then ap- 
pear, that the author of these pages, is neither nullifier nor anar- 
chist, and that however he differs from the learned commentator in 
his premises, he will not merit his reproaches for the conclusions 
to which he arrives.] 



CONSTITUTIONAL LAW. 123 

elusions may not always be avowed ; but they flow natu- 
rally from the doctrines, which we have under considera- 
tion. («) They go to the extent of reducing the govern- 
ment to a mere confederacy during pleasure ; and of thus 
presenting the extraordinary spectacle of a nation existing 
only at the will of each of its constituent parts. 

" § 322. If this be the true interpretation of the instru- 
ment, it has wholly failed to express the intentions of its fra- 
mers, and brings back, or at least may bring back, upon us 
all the evils of the old confederation, from which we were 
supposed to have had a safe deliverance. For the power 
to operate upon individuals, instead of operating merely 
on states, is of little consequence, though yielded by the 
constitution, if that power is to depend for its exercise 
upon the continual consent of all the members upon every 
emergency. We have already seen, that the framers of the 
instrument contemplated no such dependence. Even under 
the confederation it was deemed a gross heresy to main- 
tain that a party to a compact has a right to revoke that 
compact; and the possibility of a question of this nature 
was deemed to prove the necessity of laying the founda- 
tions of our national government deeper, than in the mere 
sanction of delegated authority. (y) ' A compact between 

ties of all unauthorized acts done under colour of that instrument 
is the rightful remedy." North American Review, Id. 503; 4 El- 
liot's Debates, 315, 322. In Mr. Madison's Report in the Virginia 
legislature, in January 1800, it is also affirmed that the states are 
parties to the constitution ; but by states he here means (as the con- 
text explains) the people of the states. That report insists, that 
the states are in the last resort, the ultimate judges of the infrac- 
tions of the constitution, p. 6, 7, 8, 9. 

{u) I do not mean to assert, that all those, who held these doc- 
trines, have adopted the conclusions drawn from them. There are 
eminent exceptions ; and among them the learned commentator 
on Blackstone's Commentaries seems properly numbered. See 1 
Tucker's Black. App. 170, 171, § 8. See the debates in the senate 
on Mr. Foot's resolution in 1830, and Mr. Dane's Appendix, and 
his Abridgment and Digest, 9th vol. ch. 187, art. 20, § 13 to 22, p. 
588, et seq. ; North American Review for October 1830, on the 
debates on the public lands, p. 481 to 486, 488 to 528 ; 4 Elliot's 
Debates, 315 to 330; Madison's Virginia Report, January 1800, p. 
6, 7, 8, 9; 4 Jefferson's Correspondence, 415; vice president Cal- 
houn's letter to governor Hamilton, August 28, 1832. 

(v) The Federalist, No. 22; Id. No. 43 ; see also Mr. Patterson's 
opinion in the convention, 4 Elliot's Debates, 74, 75; and Yates's 
Minutes. 



124 LECTURES ON 

independent sovereigns, founded on acts of legislative au- 
thority, can pretend to no higher validity, than a league or 
treaty between the parties. It is an established doctrine 
on the subject of treaties, that all the articles are mutually 
conditions of each other ; that a breach of any one article 
is a breach of the whole treaty ; and that a breach com- 
mitted by either of the parties absolves the others, and au- 
thorizes them, if they please, to pronounce the compact 
violated and void.'(2c) Consequences like these, which 
place the dissolution of the government in the hands of a 
single state, and enable it at will to defeat, or suspend the 
operation of the laws of the Union, are too serious, not to 
require us to scrutinize with the utmost care and caution 
the principles, from which they flow, and by which they 
are attempted to be justified.* 

" § 350. In what light, then, is the constitution of the 
United States to be regarded ?t Is it a mere compact, 
treaty, or confederation of the states composing the Union, 

(w) The Federalist, No. 43. — Mr. Madrson, in tlie Virginia Re- 
port of January 1800, asserts, (p. 6, 7,) that "the states being par- 
ties to the constitutional compact, and in their sovereign capacity, 
it follows of necessity, that there can be no tribunal above their 
authority to decide in tlie last resort, whether the compact made 
by them be violated ; and consequently, that as the parties to it, 
they must themselves decide in the last resort such questions, as 
may be of sufficient magnitude to require their interposition." Id. 
p. 8, 9. 

[* Such a heresy will not be found in these pages. While their 
author admits that every party to a compact has a right to judge of 
its infraction, and to refnse longer to be bound by it when broken, 
he contends on the other hand, that every other party has an equal 
right to judge, and that the recusant acts upon his ovrn responsi- 
bility, in undertaking to decide and to act contrary to the pre- 
vailing opinion of the other parties to the contract.] 

[t As a compact between the states, whereby they have ordained 
and established the constitution for the United States of America. 
The people of the thirteen distinct and separate political bodies or 
communities constituting states, agreed together in a general con- 
vention of delegates from them severally and respectively j to or- 
dain and establish the constitution as a form of government for the 
United States. The constitution may therefore be looked upon 
rather as the result of the agreeme?it, (see page 339^) than as the 
aoreement itself. The agreement of the states is in the preamble, 
" We, the people of the United States, do ordain and establish this 
constitution for the United States of America."] 



CONSTITUTIONAL LAW. 125 

or of the people thereof, whereby each of the several 
states, and the people thereof, have respectively bound 
themselves to each other ? Or is it a form of government, 
which, having been ratified by a majority of the people in 
all the states, is obligatory upon them, as the prescribed 
rule of conduct of the sovereign power, to the extent of 
its provisions? 

"351. Let us consider, in the first place, whether it is 
to be deemed a compact. By this, we do not mean an act 
of solemn assent by the people to it, as a form of govern- 
ment, (of which there is no room for doubt,) but a contract 
imposing mutual obligations, and contemplating the per- 
manent subsistence of parties having an independent right 
to construe, control, and judge of its obligations. If in 
this latter sense it is to be deemed a compact, it must be, 
either because it contains on its face stipulations to that 
effect, or because it is necessarily implied from the nature 
and objects of a frame of government. 

" § 352. There is nowhere found upon the face* of the 
constitution any clause, intimating it to be a compact, or in 
anywise providing for its interpretation, as such. On the 
contrary, the preamble emphatically speaks of it, as a so- 
lemn ordinance and establishment of government. The 
language is, ' We, the people of the United States, do or- 
dain and establish this constitution for the United States of 
America.' The people do ordain and establish, not con- 
tract and stipulate with each other. (x) The people of the 
United States, not the distinct people of a particular state 

(x) The words "ordain and establish" are also found in the 3d 
article of the constitution. "The judicial power shall be vested 
in one supreme court, and in such inferior courts, as the congress 
may from time to time ordain and establish." How is this to be 
done by congress ? Plainly by a law ; and when ordained and es- 
tablished, is such a law a contract or compact between the legisla- 
ture and the people, or the court, or the different departments of 
the government? No. It is neither more nor less than a law, 
made by competent authority, upon an assent or agreement of 
minds. In Martin v. Hunter, (1 Wheat. R. 304, 324,) the supreme 
court said, " The constitution of the United States was ordained 

[* The fallacy of this position, and of the greater part of those 
which follow in the extract from the Commentaries, cannot be ful- 
ly exposed in a note. I shall therefore give, as we proceed, only 
a few short annotations, and hereafter take up and examine the re- 
sidue of the passage in detail.] 
11* 



126 LECTURES ON 

with the people of the other states. The people ordain 
and establish a ^constitution,' not a 'confederation.' The 
distinction between a constitution and a confederation is 
well known and understood. The latter, or at least a pure 
confederation, is a mere treaty or league between indepen- 
dent states, and binds no longer, than during the good 
pleasure of each.(3/) It rests forever in articles of com- 
pact, where each is, or may be the supreme judge of its 
own rights and duties. The former is a permanent form 
of government, where the powers, once given, are irrevo- 
cable, and cannot be resumed or withdrawn at pleasure. 
Whether formed by a single people, or by different socie- 
ties of people, in their political capacity, a constitution, 
though originating in consent, becomes, when ratified, 
obligatory, as a fundamental ordinance or law.(z) The 
constitution of a confederated republic, that is, of a na- 
tional republic formed of several states, is, or at least may 
be, not less an irrevocable form of goverraent, than the 
constitution of a state formed and ratified by the aggregate 
of the several counties of the state. (a)* 

" § 353. If it had been the design of the framers of the 
constitution or of the people, who ratified it, to consider 
it a mere confederation, resting on treaty stipulations, it is 
difficult to conceive, that the appropriate terms should not 
have been found in it. The United States were no stran- 

and established, not by the states in their sovereign capacities, but 
emphatically, as the preamble of the constitution declares, ' by the 
people of the United States.' " To the same eifect is the reason- 
ing of Mr. chief justice Marshall, in delivering the opinion of the 
court in M'CuUoch v. Maryland, (4 Wheaton, 316, 402 to 405, al- 
ready cited.) 

(y)The Federalist, No. 9, 15, 17,18,33; Webster's Speeches, 
1830; Dane's App. § 2, p. 11, § 14, p. 25, «&c. ; Id. § 10, p. 21; 
Mr. Martin's letter, 3 Elliot, 53; 1 Tucker's Black. Coram. 
App. 146. 

(z) ] Wilson's Lectures, 417. 

(a) See The Federalist, No. 9; Id. No. 15, 16; Id. No. 33 ; Id. 
No. 39. 

[* In this proposition I concur, with this modification, that though 
irrevocable by the ordinary forms of government, it may be revo- 
cable by the exercise of rights paramount to all constitutions ; but 
the state which asserts these rights, does so on its own responsi- 
bility, since in matters between states, if one has a right to judge, 
others have also. The right of secession can only be revolution- 
ary.] 



H*: 



CONSTITUTIONAL LAW. 127 

gers to compacts of this nature. (6) They had subsisted 
to a limited extent before the revolution. The articles of 
confederation, though in some few respects national, were 
mainly of a pure federative character, and were treated as 
stipulations between states for many purposes independent 
and sovereign. (c) And yet (as has been already seen) it 
was deemed a political heresy to maintain, that under it 
any state had a right to withdraw from it at pleasure, and 
repeal its operation ; and that a party to the compact had 
a right to revoke that compact. (^) The only places, where 
the terms, confederation or compact, are found in the con- 
stitution, apply to subjects of an entirely different nature, 
and manifestly in contradistinction to constitution. Thus, 
in the tenth section of the first article it is declared, that 
" no state shall enter into any treaty, alliance, or confe- 
deration;^^ — "no state shall, without the consent of con- 
gress, &c., enter into any agreement or compact with ano- 
ther state, or with a foreign power." Again, in the sixth 
article it is declared, that " all debts contracted, and en- 
gagements entered into, before the adoption of this consti- 
tution, shall be as valid against the United States under 
this constitution, as under the confederation ^ Again, in 
the tenth amendment it is declared, that "the powers not 
delegated by the constitution, nor prohibited by it to the 
states, are reserved to the states respectively, or to the 
people." A contract can in no just sense be called a de- 
legation of powers.* 

Q)) New England Confederacy of 1643 ; 3 Kent. Coram. 190, 
191, 192; Rawle on Const. Introduct. p. 24, 25. In the ordinance 
of 1787, for the government of the territory northwest of the Ohio, 
certain articles were expressly declared to be "articles of compact 
between the original states, [i. e. the United States,] and the people 
and states [states infiUuro, for none were then in being] in the said 
territory." But to guard against any possible difficulty, it was de- 
clared, that these articles should " forever remain unalterable, un- 
less by common consent." So, that though a compact, neither party 
was at liberty to withdraw from it at its pleasure, or to absolve it- 
self from its obligations. Why was not the constitution of the 
United States declared to be articles of compact, if that was the 
intention of the framers ? 

(c)The Federalist, No. 15, 22, 39, 40, 43; Ogden v. Gibbons, 9 
Wheaton'sR. 1,187. 

(d)The Federalist, No. 22; Id. No. 43. 

[* But why may there not be a compact amongst several for a 
delegation of powers .'] 



128 LECTURES ON 

" 354. But that, which would seem conclusive on the 
subject, (as has been already stated,) is the very language 
of the constitution itself, declaring it to be a supreme fun- 
damental law, and to be of judicial obligation, and recog- 
nition in the administration of justice. ' This constitution,' 
says the sixth article, ' and the laws of the United States, 
which shall be made in pursuance thereof, and all treaties 
made, or which shall be made under the authority of the 
United States, sAa/Z 6e the supreme laio of the land; and 
the judges in every state shall be bound thereby, any 
thing in the constitution or laws of any state to the con- 
trary notwithstanding.' If it is the supreme law, how can 
the people of any state, either by any form of its own con- 
stitution, or laws, or other proceedings, repeal, or abro- 
gate, or suspend it 1 

" § 355. But, if the language of the constitution were 
less explicit and irresistible, no other inference could be 
correctly deduced from a view of the nature and objects of 
the instrument. The design is to establish a form of go- 
vernment. This, of itself, imports legal obligation, per- 
manence, and uncontrollability by any, but the authorities 
authorized to alter, or abolish it. The object was to se- 
cure the blessings of liberty to the people, and to their 
posterity. The avowed intention was to supercede the old 
confederation, and substitute in its place a new form of 
government. We have seen, that the inefficiency of the 
old confederation forced the states to surrender the league 
then existing, and to establish a national constitution. (e) 
The convention also, which framed the constitution, de- 
clared this in the letter accompanying it. ' It is obviously 
impracticable in the federal government of these states,' 

(e) The very first resolution adopted by the convention (six states 
to two states) was in the following words : " Resolved, that it is 
the opinion of this committee, that a national government ought to 
be established of a supreme legislative, judiciary, and executive ;"* 
plainly shewing, that it was a national government, not a compact, 
which they were about to establish; a supreme legislative, judi- 
ciary, and executive, and not a mere treaty for the exercise of de- 
pendent powers during the good pleasure of all the contracting 
parties.! 

* Journal of Convention, p. 83, 134, 139, 207; 4 Elliott's Debates, 49. See 
also 2 Pitkin's History, 232. 

[f I earnestly protest against such strong inferences from a mere incipient pro- 
position, which was never carried out in its spirit or principles.] 



CONSTITUTIONAL LAW. 129 

says that letter, ' to secure all rights of independent sove- 
reignty to each, and yet provide for the interest and safety 
of all. Individuals entering into society must give up a 
share of liberty to preserve the rest.'(y) — ' In all our delibe- 
rations on this subject, we kept steadily in our view that, 
which appeared to us the greatest interest of every true 
American, the consolidation of our Union, in which is in- 
volved our prosperity, felicity, safety, perhaps our national 
existence.' Could this be attained consistently with the 
notion of an existing treaty or confederacy, which each 
at its pleasure was at liberty to dissolve ?(^) 

" § 356. It is also historically known, that one of the 
objections taken by the opponents of the constitution was, 
' that it is not a confederation of the states but a govern- 
ment of individuals. '(A) It was, nevertheless, in the so- 
lemn instruments of ratification by the people of the seve- 
ral states, assented to, as a constitution.* The language 
of those instruments uniformly is, ' We, &c. do assent to, 
and ratify the said constitution.' (i) The forms of the 
convention of Massachusetts and New Hampshire, are 
somewhat peculiar in their language. ' The convention, 
&c. acknowledging, with grateful hearts, the goodness of 
the Supreme Ruler of the Universe in affording the people 
of the United States, in the course of his providence, an 

(/) Journal of Convention, p. 3S7, 368. 

(g) The language of the supreme court in Gibbons v- Ogden, (9 
Wheat. R. 1, 187,) is very expressive on this subject : 

" As preliminary to the very able discussions of the constitution 
which we have heard from the bar, and as having some influence 
on its construction, reference has been made to the political situa- 
tion of these states, anterior to its formation. It has been said 
that they were sovereign, were completely independent, and were 
connected with each other only by a league. This is true. But 
when these allied sovereigns converted their league into a govern- 
ment, when they converted their congress of ambassadors, depu- 
ted to deliberate on their common concerns, and to recommend 
measures of general utility, into a legislature, empowered to enact 
laws on the most interesting subjects, the whole character, in which 
the states appear, underwent a change, the extent of which must 
be determined by a fair consideration of the instrument, by which 
that change was effected." 

(h) The Federalist, No. 38, p. 247; Id. No. 39, p. 256. 

(i) See the forms in the Journals of the Convention, &c. (1819), 
p. 390 to 465. 

[* See post.] 



130 LECTURES ON 

opportunity, deliberately and peaceably, without force or 
surprise, of entering into an explicit and solemn compact 
with each other, hy assenting to and ratifying a new con- 
stitution, &>c. do assent to, and ratify the said constitu- 
tion. '(A;) And although many declarations of rights, 
many propositions of amendments, and many protestations 
of reserved powers are to be found accompanying the ra- 
tifications of the various conventions, sufficiently evincive 
of the extreme caution and jealousy of those bodies, and 
of the people at large, it is remarkable, that there is no- 
where to be found the slightest allusion to the instrument, 
as a confederation or compact of states in their sovereign 
capacity, and no reservation of any right, on the part of 
any state, to dissolve its connexion, or to abrogate its as- 
sent, or to suspend the operations of the constitution, as to 
itself On the contrary, that of Virginia, which speaks 
most pointedly to the topic, merely declares, ' that the 
powers granted under the constitution, being derived from 
the people of the United States, may be resumed by the7n 
[not by any one of the states] whenever the same shall be 
perverted to their injury or oppression.' (/) 

" § 357. So that there is very strong negative testi- 
mony against the notion of its being a compact or confede- 
ration, of the nature of which we have spoken, founded 
upon the known history of the times, and the acts of rati- 
fication, as well as upon the antecedent articles of confede- 
ration. The latter purported on their face to be a mere 
confederacy. The language of the third article was, 
' The said states hereby severally enter into a firm league 
of friendship with each other for their common defence, 
&c. binding themselves to assist each other.' And the 
ratification was by delegates of the state legislatures, who 
solemnly plighted and engaged the faith of their respec- 
tive constituents, that they should abide by the determina- 
tion of the United States in congress assembled on all 
questions, which, by the said confederation, are submitted 
to them ; and that the articles thereof should be inviolably 
observed by the states they respectively represented. (?w) 

(k) Journals of the Convention, &c. (1819), p. 401, 402, 412. 

(I) Id. p. 416. — Of the right of a majority of the whole people 
to change their constitution, at will, there is no doubt. See 1 Wil- 
son's Lectures, 418 ; 1 Tuck. Black. Comm. 165. 

(m) Articles of Confederation, 1781, art. 13. 



CONSTITUTIONAL LAW. 131 

" § 35S. It is not unworthy of observation, that in the 
debates of the various conventions called to examine and 
ratify the constitution, this subject did not pass without 
discussion. The opponents, on many occasions, pressed 
the objection, that it was a consolidated government, and 
contrasted it with the confederation. (?i) None of its ad- 
vocates pretended to deny,* that its design was to estab- 
lish a national government, as contradistinguished from a 
mere league or treaty, however they might oppose the sug- 
gestions, that it was a consolidation of the states. (o) In 
the North Carolina debates, one of the members laid it 
down, as a fundamental principle of every safe and free 
government, that ' a government is a compact between the 
rulers and the people.' This was most strenuously denied 
on the other side by gentlemen of great eminence. They 
said, ' A compact cannot be annulled, but by the consent 
of both parties. Therefore, unless the rulers are guilty of 
oppression, the people, on the principles of a compact, 
have no right to new-model their government. This is held 
to be the principle of some monarchical governments in 
Europe. Our government is founded on much nobler prin- 
ciples. The people are known with certainty to have ori- 
ginated it themselves. Those in power are their servants 
and agents. And the people without their consent, may 
new-model the government, whenever they think proper, 
not merely because it is oppressively exercised, but because 

(n) I do not say, that the manner of stating the objection was 
just, but the fact abundantly appears in the printed debates. For 
instance, in the Virginia debates, (2 Elliot's Deb. 47,) Mr. Henry 
said, "That this is a consolidated government is demonstrably 
clear." — "The language [is] 'We, the people,' instead of ' We, 
the states.' States are the characteristics and soul of a confedera- 
tion. If the states be not the agents of this compact, it must be 
one great consolidated national government of the people of all the 
states." The like suggestion will be found in various places in 
Mr. Elliot's Debates in other states. See 1 Elliot's Debates, 91, 
92, 110. See also 3 Amer. Museum, 422; 2 Amer. Museum, 540, 
546; Mr. Martin's letter, 4 Elliot's Debates, p. 53. 

(o) 3 Elliot's Debates, 145,257, 291 ; The Federalist, No. 32, 38, 
39, 44, 45 ; 3 Amer. Museum, 422, 424.t 

[* This is not correct. See post.] 

[t The Federalist does not pretend to consider the government as consolidated, 
but the contrary. See the passages cited. See also 1 Story 334.] 



132 LECTURES ON 

they think another form will be more conducive to their 
welfare. '(p) 

" 359. Nor should it be omitted, that in the most elabo- 
rate expositions of the constitution by its friends, its cha- 
racter, as a permanent form of government, as a funda- 
mental law, as a supreme rule, which no state was at li- 
berty to disregard, suspend or annul, was constantly ad- 
mitted, and insisted on, as one of the strongest reasons, 
why it should be adopted in lieu of the confederation. (g) 
It is matter of surprise, therefore, that a learned commen- 
tator should have admitted the right of any state, or of the 
people of any state, without the consent of the rest, to se- 
cede from the Union at its own pleasure. (r) The people 
of the United States have a right to abolish, or alter the 
constitution of the United States ;* but that the people of a 

O) Mr. Iredell, 3 Elliot's Debates, 24, 25 ; Id. 200, Mr. M'Clnre, 
Id. 25; Mr. Spencer, Id. 26, 27; Id. 139. See also 3 Elliot's De- 
bates, 156. See also Chisholm v. Georgia, S Dall.419; 2 (con- 
densed Rep. 635, 667, 668. See also in Penn. Debates, Mr. Wil- 
son's denial, that the constitution was a compact; 3 Elliot's De- 
bates, 286, 287. See also M' Culloch v. Maryland, 4 Wheaton, 316, 
404. 

{q) The Federalist, No. 15 to 20, 38, 39, 44 ; North Amer. Re- 
view, Oct. 1827, p. 265, 266. 

(r) Rawle on the Constitution, ch. 32, p, 295, 296, 297, 302, 305. 

* [If we understand, as judge Story does, " the people of the 
United States" to mean the people considered as one whole, the 
proposition here laid down, is unhesitatingly denied. If all the 
people in six of the largest states were to concur, they would have 
no right to alter or abolish the constitution, though they would 
constitute a majority of the Union. For the compact can only be 
dissolved by the states, who made it, upon the clear principle, 
'■'■ dissolvitur eo viodo quolegatur." Nor could it be dissolved by 
any one or more states, except upon the principles of revolution, 
which are above all law. It enters into no part of our system, 
that because the constitution is a compact, any party to it has a 
right to dissolve it, if it deems it to have been broken. This mat- 
ter will be more fully developed hereafter. 

We scarcely need to express our total dissent to the views of 
Mr. Dane, presented in this passage. We do not recognize him as 
authority, and still less do we defer to his very unsatisfactory rea- 
soning. We prefer rather to adopt the remark of the Federalist, 
which judge Story (with what consistency I do not perceive) dis- 
tinctly adopts : " that the constitution was the result of the unani- 
mous assent of the several states, that are parties to it."] 



CONSTITUTIONAL LAW. 133 

single state have such a right, is a proposition requiring 
some reasoning beyond the suggestion, that it is implied 
in the principles, on which our political systems are found- 
ed. (w) It seems, indeed, to have its origin in the notion 
of all governments being founded in compact, and there- 
fore liable to be dissolved by the parties, or either of them ; 
a notion, which it has been our purpose to question, at 
least in the sense, to which the objection applies. 

" § 360. To us the doctrine of Mr. Dane appears far bet- 
ter founded, that ' the constitution of the United States is 
not a compact or contract agreed to by two or more par- 
ties, to be construed by each for itself, and here to stop for 
the want of a common arbiter to revise the construction 
of each party or state. But that it is, as the people have 
named and called it, truly a constitution ; and they pro- 
perly said, ' We, the people of the United States, do or- 
dain and establish this constitution,' and not, we, the peo- 
ple of each state. '(o) And this exposition has been sus- 
tained by opinions of some of our most eminent statesmen 

{n) Dane's App. § 59, 60, p. 69, 71. 

(o) Mr. (afterwards Mr. justice) Wilson, who was a member of 
the federal convention, uses, in the Pennsylvania Debates, the fol- 
lowing language : " We were told, &c. that the convention no 
doubt thought they vi^ere forming a compact or contract of the 
greatest importance. It was matter of surprise to see the great 
leading principles of this system still so very much misunderstood. 
I cannot answer for what every member thought; but I believe it 
cannot be said, they thought they were making a contract, because 
I cannot discover the least trace of a compact in that system. 
There can be no compact, unless there are more parties than one. It 
is a new doctrine, that one can make a compact with himself. ' The 
convention were forming contracts ! with whom .^ I know no bar- 
gains, that were there made ; I am unable to conceive who the 
parties could be. The state governments make a bargain with 
each other. That is the doctrine, that is endeavoured to be estab- 
lished by gentlemen in the opposition ; their state sovereignties 
wish to be represented. But far other were the ideas of the con- 
vention. This is not a government founded upon compact. It is 
founded upon the power of the people. They express in their name 
and their authority, we, the people, do ordain and establish,' &c. 
3 Elliot's Debates, 286, 287. He adds, (Id. 288,) " This system is 
not a compact or contract. The system tells you, what it is; it is 
an ordinance and establishment of the people." 9 Dane's Abridg. 
ch. 187, art. 20, § 15, p. 589, 590; Dane's App. § 10, p. 21, § 59, 
p. 69. 

12 



134 LECTURES ON 

and judges.(/?) It was truly remarked by the Federal- 
ist,(g') that the constitution was the result neither from the 
decision of a majority of the people of the Union, nor 
from that of a majority of the states. It resulted from the 
unanimous assent of the several states that are parties to 
it, differing no otherwise from their ordinary assent, than 
its being expressed, not by the legislative authority but by 
that of the people themselves. 

"§ 361. But if the constitution could in the sense, to 
which we have alluded, be deemed a compact, between 
whom is it to be deemed a contract? We have already 
seen, that the learned commentator on Blackstone, deems 
it a compact with several aspects, and first between the 
states, (as contradistinguished from the people of the 
states,) by which the several states have bound themselves 
to each other, and to the federal government.(r) The Vir- 
ginia resolutions of 1798, assert, that 'Virginia views the 
powers of the federal government, as resulting from the 
compact, to which the states are parties' This declaration 
was, at the time, matter of much debate and difference of 
opinion among the ablest representatives in the legislature. 
But when it was subsequently expounded by Mr. Madison 
in the celebrated report of January 1800, after admitting, 
that the term * states' is used in different senses, and among 
others, that it sometimes means the people composing a poli- 
tical society in their highest sovereign capacity, he considers 
the resolution unobjectionable, at least in this last sense, be- 
cause in that sense the constitution was submitted to the 
'states;' in that sense the 'states' ratified it; and in that 
sense the states are consequently parties to the compact, 
from which the powers of the federal government result. (s) 
And that is the sense, in which he considers the states par- 
ties in his still later and more deliberate examinations.(^) 

(p) See Ware v. Hylton, .3 Dall. 199; 1 Cond. Rep. 99, 112; 
Chisholm V. Georgia, 3 Dall. 419; 2 Cond. R. 668, 671; Elliot's 
Debates, 72; 2 Elliot's Debates, 47; Webster's Speeches, p. 410; 
The Federalist, No. 22, 33, 39; 2 Amer. Museum, 536, 546; Vir- 
ginia Debates in 1798, on the Alien Laws, p. Ill, 136, 138, 140; 
North Amer. Rev. Oct. 1830, p. 437, 444. 

(q) No. 39. 

(r) 1 Tuck. Black. Comm. 169; Hayne's speech in the senate, 
in 1830; 4 Elliot's Debates, 315, 316. 

(s) Resolutions of 1800, p. 5, 6. 

(t) North American Review, Oct. 1830, p. 537, 544. 



CONSTITUTIONAL LAW. 135 

" § 362. This view of the subject is, however, wholly at 
variance* with that, on which we are commenting ; and 
which, having no foundation in the words of the constitu- 
tion, is altogether a gratuitous assumption, and therefore 
inadmissible. It is no more true, that a state is a party to 
the constitution, as such, because it was framed by dele- 
gates chosen by the states, and submitted by the legisla- 
tures thereof to the people of the states for ratification, 
and that the states are necessary agents to give effect to 
some of its provisions, than that for the same reasons the 
governor, or senate, or house of representatives, or judges, 
either of a state or of the United States, are parties there- 
to. No state, as such, that is, the body politic,! as it was 

[* It is singular that the commentator does not advert to the ob- 
vious principle that it is not the legislature but the people of the 
state who constitute the states; and hence, that to constitute a 
compact between the states, the assent or act of the respective le- 
gislatures was not necessary, but the assent or act of the people 
themselves in the respective states, constituting distinct bodies po- 
litic from each other. The legislatures under our system could not 
have adopted the constitution. Acting under limited powers, they 
had no right to enter into any compact transferring part of their 
powers, and portions of the state sovereignty, to others. Such an 
act was not within the charter which created them. It was there- 
fore necessary that the people of the state, who constitute the so- 
vereignty, should ratify the instrument. They had that power, and 
when they exerted it, it was an exercise of state sovereignty ; and 
so the ratification of the constitution by them, in their respective 
conventions, was an act of state sovereignty, by which each state 
contracted with every other to establish and maintain the stipula- 
ted form of government.] 

[ t Here the learned author clearly means the '■'■legislatures;" 
and what he says of their want of power to form a constitution, is 
strictly true, and well expressed. But he admits that "the people, 
in their original, sovereign capacity, had a right to change their 
form of government." What people .'' Not the people of the whole 
confederacy, as one, — for there was none such; but the people of 
each of the confederate states, who were then, at least, sovereign 
and independent. Judge Story feels the force of the distinction, 
when he says in page 330, " And the states never, in fact, did in 
their political capacity, (as contradistinguished from the people 
THEREOF,) ratify the constitution." That is to say, the legisla- 
tures did not, though he admits the people thereof (that is, of each 
state) did. And this is all we contend for : believing that the rati- 
fication by the people of each state, in their conventions, was an 
uct of separate state sovereignty, which made the constitution a 
compact between states, and not a national or consolidated govern- 
ment."] 



136 LECTURES ON 

actually organized, had any power to establish a contract 
for the establishment of any new government over the peo- 
ple thereof, or to delegate the powers of government in 
whole, or in part to any other sovereignty. The state go- 
yisrnments were framed by the people to administer the 
"State constitutions, such as they were, and not to transfer 
fthe administration thereof to any other persons, or sove- 
reignty. They had no authority to enter into any compact 
or contract for such a purpose. It is no where given, or 
implied in the state constitutions; and consequently, if ac- 
tually entered into, (as it was not,) would have had no ob- 
ligatory force. The people, and the people only, in their 
original sovereign capacity, had a right to change their 
form of government, to enter into a compact, and to trans- 
fer any sovereignty to the national government.(M) And 
the states never, in fact, did in their political capacity, as 
contradistinguished from the people thereof, ratify the con- 
stitution. They were not called upon to do it by congress; 
and were not contemplated, as essential to give validity to 
it.(«) 

(u) 4 Wheat. 404. 

(v) The Federalist, No. 39. — In confirmation of this view, we 
may quote the reasoning of the supreme court in the case of 
M^ Culloch V. Maryland, (4 Wheaton's R. 316,) in answer to the 
very argument. " The powers of the general government, it has 
been said, are delegated by the states, who alone are truly sove- 
reign ; and must be exercised in subordination to the states, who 
alone possess supreme dominion. 

" It would be difficult to sustain this proposition. The conven- 
tion, which framed the constitution, was indeed elected by the 
state legislatures. But the instrument, when it came from their 
hands, was a mere proposal, without obligation, or pretensions to 
it. It was reported to the then existing congress of the United 
States, with a request, that it might 'be submitted to a convention 
of delegates, chosen in each state by the people thereof, under the 
recommendation of its legislature, for their assent and ratification.' 
This mode of proceeding was adopted ; and by the convention, by 
congress, and by the state legislatures, the instrument was submit- 
ted to the people. They acted upon it in the only manner in 
which they can act safely, effectively, and wisely, on such a sub- 
ject, by assembling in convention. It is true, they assembled in 
their several states — and where else should they have assembled .''* 

[*This is an evasion unworthy of the chief justice. The argument of his 
adversaries did not rest upon the place where, the conventions met, but upon the 
convention of each state representing its own state alone as a sovereign state,) 
and not as a fragment of the aggregate nation.] 



CONSTITUTIONAL LAW. 137 

" § 363. The doctrine, then, that the states are parties 
is a gratuitous assumption. In the language of a most dis- 

No political dreamer was ever wild enough to think of breaking 
down the lines, which separate the states, and of compounding the 
American people into one common mass.* Of consequence, when 
they act, they act in their states. But the measures they adopt do 
not, on that account, cease to be the measures of the people them- 
selves, or become the measures of the state governments. 

" From these conventions the constitution derives its whole au- 
thority. The government proceeds directly from the people ;t is 
' ordained and established' in the name of the people ; and is de- 
clared to be ordained, ' in order to form a more perfect union, es- 
tablish justice, ensure domestic tranquillity, and secure the bles- 
sings of liberty to themselves and to their posterity.' The assent 
of the states, in their sovereign capacity, t is implied in calling a 
convention, and thus submitting that instrument to the people. 
But the people were at perfect liberty to accept or reject it; and 
their act was final. It required not the affirmance, and could not 
be negatived by the state governments. The constitution, when 
thus adopted, was of complete obligation, and bound the state so- 
vereignties. 

" It has been said, that the people had already surrendered all 
their powers to the state sovereignties, and had nothing more to 
give. But surely, the question, whether they may resume and 
modify the powers granted to government, does not remain to be 
settled in this country. Much more might the legitimacy of the 
general government be doubted, had it been created by the states. § 
The powers delegated to the state sovereignties were to be exer- 
cised by themselves, not by a distinct and independent sovereign- 
ty, created by themselves. To the formation of a league, such as 
was the confederation, the state sovereignties were certainly com- 
petent. But when, ' in order to form a more perfect union,' it 
was deemed necessary to change this alliance into an effective go- 
vernment, possessing great and sovereign powers, and acting di- 
rectly on the people, the necessity of referring it to the people, and 
of deriving its powers directly from them, was felt and acknow- 
ledged by all. 

[* What would the chief justice have thought of the dreams of judge Stoiy, 
Mr. Webster, and Mr. Dane, whose favouriteliypothesis is " the compounding 
the American people into one common mass." See $ 363.] 

[| What people .' The people of the separate, free and independent states of 
the confederacy ; each acting for itself: each having a power of absolute re- 
jection whether ratified by others or not.] 

[| The calling the conventions was an act of the legislatures and not the 
act of the states in their sovereign capacity as to this matter. The conventions, 
quoad hoc, represented the state sovereignties. Throughout this whole passage, 
the chief justice speaks of the legislatures as the state sovereigns, whereas, in 
truth, they had no power to bind' the people by their assent, for the reasons so 
forcibly given by judge Story in § 362.] 

[§ If not created by the states (I do not mean the legislatures of the states) 
why on the question of acceptance were not the votes of all the states aggre- 
gated to ascertain the majority .' Why could each state reject ? Why was lit- 
tle Delaware made equal with Virginia .' 

12* 



138 LECTURES ON 

tinguished statesman, (?») ' the constitution itself in its very 
front refutes that. It declares that it is ordained and es- 
tablished hy the people of the United States. So far from 
saying that it is established by the governments of the se- 
veral states, it does not even say, that it is established hy 
the 'people of the several states. But it pronounces that it 
is established by the people of the United States in the 
aggregate.* Doubtless the people of the several states, 
taken collectively, constitute the people of the United 
States. But it is in this their collective capacity, it is as 
all the people of the United States, that they establish the 
constitution.' (x) 

" § 364. But if it were admitted, that the constitution 
is a compact between the states,, 'the inferences deduced 
from it,' as has been justly observed by the same states- 

"The government of the Union, then, (whatever may be the in- 
fluence of this fact on the case,) is, emphatically, and truly, a go- 
vernment of the people. In form and in substance it emanates 
from them. Its powers are granted by them, and are to be exer- 
cised directly on them, and for their benefit. 

" This government is acknowledged by all to be one of enumerated 
powers. The principle, that it can exercise only the powers grant- 
ed to it, would seem too apparent to have required to be enforced 
by all those arguments, which its enlightened friends, while it was 
depending before the people, found it necessary to urge. That prin- 
ciple is now universally admitted. But the question respecting the 
extent of the powers actually granted, is perpetually arising, and 
will probably continue to arise, as long as our system shall exist." 

{w) Webster's Speeches, 1830, p. 431 ; 4 Elliot's Debates, 326. 

{%) Mr. Dane reasons to the same effect, though it is obvious, 
that he could not, at the time, have had any knowledge of the 
views of Mr. Webster." He adds, " If a contract, when and how 
did the Union become a party to it.' If a compact, why is it never 
so denominated, but often and invariably in the instrument itself, 
and in its amendments, styled, ' this constitution .' And if a con- 
tract, why did the frarners and people call it the supreme law ?'t In 
Martin v.Hmiter, (] Wheat. R. 304, 324,) the supreme court ex- 
pressly declared, that " the constitution was ordained and establish- 
ed," not b}' the states in their sovereign capacity, but emphatical- 
ly, as the preamble of the constitution declares, " by the people of 
the United States." 

[* Can we suppress our wonder at the distinct avowal of such an 
opinion by such a man ! ! ! This is the wild political <Zream which 
the chief justice himself conceived to be impossible. It compounds 
the American people into one common mass.] 

* 9 Dane's Abridg. ch. 189, art. 20, « 15, p. 589, 590 ; Dane's App. 40, 41, 42. 
t 9 Dane's Abridg. 590. 



CONSTITUTIONAL LAW. 139 

man,{y) are warranted by no just reason. Because, if 
the constitution be a compact between the states, still that 
constitution or that compact has established a government 
with certain powers ; and whether it be one of these pow- 
ers, that it shall construe and interpret for itself the terms 
of the compact in doubtful cases, can only be decided by 
looking to the compact, and enquiring, what provisions it 
contains on that point. Without any inconsistency with 
natural reason, the government even thus created might be 
trusted with this power of construction. The extent of its 
powers must, therefore, be sought in the instrument itself 
' If the constitution were the mere creation of the state 
governments, it might be modified, interpreted, or con- 
strued according to their pleasure. But even in that case, 
it would be necessary, that they should agree. One alone 
could not interpret it conclusively. One alone could not 
construe it. One alone could not modify it.' — ' If all the 
states are parties to it, one alone can have no right to fix 
upon it her own peculiar construction. '(z)* 

" § 365. Then, is it a compact between the people of 
the several states, each contracting with all the people of 
the other states 1{a) It may be admitted, as was the early 

(y) Webster's Speeches, 429 ; 4 Elliot's Debates, 324. 

(2) Even under the confederation, which was confessedly, in 
many respects, a mere league or treaty, though in other respects 
national, congress unanimously resolved, that it was not within 
the competency of any state to pass acts for interpreting, explain- 
ing, or construing a national treaty, or any part or clause of it. 
Yet in that instrument there was no express judicial powers given 
to the general government to construe it. It was, however, deem- 
ed an irresistible and exclusive authority in the general govern- 
ment, from the very nature of the other powers given to them ; 
and especially from the power to make war and peace, and to form 
treaties. Journals of Congress, April 13, 1787, p. 32, &c.; Rawle 
on Const. App. 2, p. 316, 320. 

(a) In the resolutions passed by the senate of South Carolina, in 
December 1827, it was declared, that " the constitution of the 
United States is a compact between the people of the different 
states with each other, as separate and independent sovereignties." 
Mr. Grimke filed a protest founded on different views of it. See 
Grimke's Address and Resolutions in 1828, (edition, 1829, at 
Charleston,) where his exposition of the constitution is given at 
large, and maintained in a very able speech. 

[* In this remark I cordially concur. My views upon this por- 
tion of our subject will be given, however, hereafter, somewhat at 
large.] 



140 LECTURES ON 

exposition of its advocates, ' that the constitution is found- 
ed on the assent and ratification of the people of America, 
given by deputies elected for the special purpose ; but that 
this assent and ratification is to be given by the whole 
people, not as individuals, composing one entire nation, 
but as composing the distinct and independent states, to 
which they respectively belong. It is to be the assent and 
ratification of the several states, derived from the supreme 
authority in each state, the authority of the people them- 
selves. The act, therefore, establishing the constitution 
will not be [is not to be] a national, but a federal act.'(6) 
' It may also be admitted,' in the language of one of its 
most enlightened commentators, that ' it was formed, not 
by the governments of the component states, as the fede- 
ral government, for which it was substituted, was formed. 
Nor was it formed by a majority of the people of the Uni- 
ted States, as a single community, in the manner of a con- 
solidated government. It was formed by the states, that is, 
by the people in each of the states acting in their highest 
sovereign capacity ; and formed, consequently, by the same 
authority, which formed the state constitutions. '(c) But 
this would not necessarily draw after it the conclusion, 
that it was to be deemed a compact, (in the sense, to 
which we have so often alluded,) by which each state was 
still, after the ratification, to act upon it, as a league or 
treaty, and to withdraw from it at pleasure. A government 
may originate in the voluntary compact or assent of the 
people of several states, or of a people never before united, 
and yet when adopted and ratified by them, be no longer a 
matter resting in compact; but become an executed go- 
vernment or constitution, a fundamental law, and not a 
mere league. But the difficulty in asserting it to be a com- 
pact between the people of each state, and all the people 
of the other states is, that the constitution itself contains 
no such expression, and no such designation of parties. (rf) 
We, ' the people of the United States, &c. do ordain, and 
establish this constitution,' is the language ; and not we, the 

(J) The Federalist, No. 39; see Slurgis v. Croioninshield, 4 
Wheat. R. 122, 193. 

(c) Mr. Madison's letter in North American Review, October 
1830, p. 537, 538. 

{(l) See Dane's App. § 32, 33, p. 41, 42, 43. 



CONSTITUTIONAL LAW. 141 

people of each state, do establish this compact between 
ourselves, and the people of all the other states.* We are 
obliged to depart from the words of the instrument, to sus- 
tain the other interpretation ; an interpretation, which can 
serve no better purpose, than to confuse the mind in rela- 
tion to a subject otherwise clear. It is for this reason, 
that we should prefer an adherence to the words of the 
constitution, and to the judicial exposition of these words 
according to their plain and common import. (e) 

" § 366. But supposing, that it were to be deemed such 
a compact among the people of the several states, let us 
see what the enlightened statesman, who vindicates that 
opinion, holds as the appropriate deduction from it. ' Be- 
ing thus derived (says he) from the same source, as the 
constitutions of the states, it has, within each state, the 
same authority as the constitution of the state ; and is as 
much a constitution within the strict sense of the term, 
within its prescribed sphere, as the constitutions of the 
states are, within their respective spheres. But with this 
obvious and essential difference, that being a compact 
among the states in their highest sovereign capacity, and 
constituting the people thereof one people for certain pur- 
poses, it cannot be altered, or annulled at the will of the 
states individually, as the constitution of a state may be at 
its individual will.'(y) 

(e) Chisholm v. Georgia, 2 Dall. 419; 2 Cond. Rep. 668, 671; 
Martin v. Hunter, 1 Wheat. R. 304, 324; Dane's App. p. 22, 24, 
29, 30, 37, 39, 40, 41, 42, 43, 51. 

(/) Mr. Madison's letter, North American Revievp, October 1830, 
p. 538. Mr. Paterson (afterwards Mr. justice Paterson) in the con- 
vention which framed the constitution, held the doctrine, that un- 
■ der the confederation no state had a right to withdraw from the 
Union without the consent of all. "The confederation (said he) 

[* The constitution of the United States is a compact between 
the people of the different states with each other as separate and 
independent sovereignties, whereby they ordained and established 
a government for the conduct of their national concerns. Its first 
clause is the act of all the states agreeing with each other to estab- 
lish that constitution. The national government is the result of 
this agreement. There are, moreover, other clauses in the consti- 
tution which may be regarded as express engagement of each state 
with the other states on certain specified points. Such are some 
of those in art. 1, § 10, as to entering into treaties, alliances, &c., 
coining money, laying duties, keeping troops, »&c.] 



142 LECTURES ON 

" § 367. The other branch of the proposition, we have 
been considering, is, that it is not only a compact between 
the several states, and the people thereof, but also a com- 
pact between the states and the federal government ; and 
e converso between the federal government, and the several 
states, and every citizen of the United States. (^) This 
seems to be a doctrine far more involved, and extraordina- 
ry, and incomprehensible, than any part of the preceding. 
The difficulties have not escaped the observation of those, 
by whom it has been advanced. 'Although (says the learn- 
ed commentator) the federal government can, in no possi- 
ble vieio, be considered as a party to a compact made ante- 
rior to it^existence ; yet, as the creature of that compact, 
it must be bound by it to its creators, the several states in 
the Union, and the citizens thereof '(/*) If by this, no 
more were meant than to state, that the federal govern- 
ment cannot lawfully exercise any powers, except those 
conferred on it by the constitution, its truth could not ad- 
mit of dispute. But it is plain, that something more was 
in the author's mind. At the same time, that he admits, 
that the federal government could not be a party to the 
compact of the constitution ' in any possible view,' he 
still seems to insist upon it, as a compact, by which the 

is in the nature of a compact; and can any state, unless by the 
consent of the whole, either in politics or law, withdraw their 
powers? Let it be said by Pennsylvania and the other large states, 
that they, for the sake of peace, assented to the confederation ; can 
she now resume her original right without the consent of the 
donee ?"* Mr. Dane unequivocally holds the same language in 
respect to the constitution. "It is clear (says he) the people of 
any one state alone, never can take, or withdraw power from the 
United States, which was granted to it by all, as the people of all 
the states can do rightfully in a justifiable revolution, or as the peo- 
ple can do in the manner their constitution prescribes." Dane's 
App. § 10, p. 21. 

The ordinance of 1787, for the government of the western ter- 
ritory, contains (as we have seen) certain articles declared to be 
"articles of compact ;" but they are are also declared to "remain 
forever unalterable, except by common consent." So that there may 
be a compact, and yet by the stipulations neither party may be at 
liberty to withdraw from it, or absolve itself from its obligations. 
Ante, p. 269. 

(0-) 1 Tucker's Black. Comm. 169, 170. 

(/() 1 Tucker's Black. Comm. 170. 

* Yates's Debates, 4 Elliot's Debates, 75. 



CONSTITUTIONAL LAW. 143 

federal government is bound to the several states, and to 
every citizen ; that is, that it has entered into a contract 
with them for the due execution of its duties. 

" § 368. And a doctrine of a like nature, viz : that the 
federal government is a party to the compact, seems to 
have been gravely entertained on other solemn occasions. (^) 
The difficulty of maintaining it, however, seems absolute- 
ly insuperable. The federal government is the result of 
the constitution, or (if the phrase is deemed by any person 
more appropriate) the creature of the compact.* How, 
then, can it be a party to that compact, to which it owes 
its own existence l{k) How can it be said, that it has en- 
tered into a contract, when at the time it had no capacity 
to contract; and was not even in esse 1 If any provision 
was made for the general government's becoming a party, 
and entering into a compact, after it was brought into ex- 
istence, where is that provision to be found? It is not to 
be found in the constitution itself Are we at liberty to 
imply such a provision, attaching to no power given in the 
constitution. This would be to push the doctrine of im- 

(i) Debate in the senate, in 1830, on Mr. Foot's resolution, 4 
Elliot's Debates, 315 to 331. 

(A-) Webster's Speeches, 429; 4 Elliot's Debates, 324. 

[* Most true. It was the result of that compact or agreement be- 
tween the several states, by which it was ordained and constituted. 
The government is not the party to the contract. It is, indeed, the 
creature of it. It is but the servant or agent of the contracting 
parties. If this servant violates its authority, its aberrations are 
corrected by various means provided by the instrument. First, the 
judiciary may pronounce its acts void. Secondly, the people may 
change their representatives, the states their senators, and the na- 
tion its executive. These are the remedies provided by the con- 
stitution itself. But it may happen that the wrongs originate yv\th. 
the constituency. One part of the Union persists in what the 
other thinks oppression. If this be actually so, then are tlie op- 
pressed driven back to their original rights and the law of self- 
preservation. But this is revolution ; and though the right of re- 
volution is undeniable, it is justified only by extreme cases and 
serious oppression. It is always an evil, and is an alternative never 
to be lightly adopted. It is better to "bide our time" and wait for 
the correction (in the natural course of things) of evils that are 
not intolerable, than to upturn the fabric of society for trifles. If 
the complaining party has a right to judge, so has the party com- 
plained of, and while it holds the mastery, there is no remedy ex- 
cept revolution, or submission to the will of the majority until they 
can be made to "kick the beam," in their turn.] 



144 • LECTURES ON 

plication to an extent truly alarming; to draw inferences, 
not from what is, but from what is not, stated in the in- 
strument. But, if any such implication could exist, when 
did the general government signify its assent to become 
such a party? When did the people authorize it to do 
so ?(^) Could the government do so, without the express au- 
thority of the people ? These are questions, which are 
more easily asked, than answered. 

" § 369. In short, the difficulties attendant upon all the 
various theories under consideration, which treat the con- 
stitution of the United States, as a compact, either between 
the several states, or between the people of the several 
states, or between the whole people of the United States, 
and the people of the several states, or between each citi- 
zen of all the states, and all other citizens, are, if not ab- 
solutely insuperable, so serious, and so wholly founded 
upon mere implication, that it is matter of surprise, that 
they should have been so extensively adopted, and so zea- 
lously propagated. These theories, too, seem mainly urged 
with a view to draw conclusions, which are at war with the 
known powers, and reasonable objects of the constitution ; 
and which, if successful, would reduce the government to 
a mere confederation. They are objectionable, then, in 
every way ; first, because they are not justified by the lan- 
guage of the constitution ; secondly, because they have a 
tendency to impair, and indeed to destroy, its express 
powers and objects ; and thirdly, because they involve con- 
sequences, which, at the will of a single state, may over- 
throw the constitution itself One of the fundamental 
rules in the exposition of every instrument is, so to con- 
strue its terms, if possible, as not to make them the source 
of their own destruction, or to make them utterly void, and 
nugatory. And if this be generally true, with how much 
more force does the rule apply to a constitution of govern- 
ment, framed for the general good, and designed for per- 
petuity 1 Surely, if any implications are to be made beyond 
its terms, they are implications to preserve, and not to de- 
stroy '\i.{m) 

(I) Dane's App. § 32, p. 41 ; Id. § 38, p. 46. 

(m) The following strong language is extracted from instructions 
given to some representatives of the state of Virginia by their con- 
stituents in 1787, with reference to the confederation : " Govern- 



CONSTITUTIONAL LAW. 145 

" § 370. The cardinal conclusion, for which this doc- 
trine of a compact has been, with so much ingenuity and 
ability, forced into the language of the constitution, (for 
the language no where alludes to it,) is avowedly to estab- 
lish, that in construing the constitution, there is no com- 
mon umpire ; but that each state, nay each department of 
the government of each state, is the supreme judge for it- 
self, of the powers, and rights, and duties, arising under 
that instrument.(w)* Thus, it has been solemnly asserted 
on more than one occasion, by some of the state legisla- 
tures, that there is no common arbiter, or tribunal, autho- 
rized to decide in the last resort, upon the powers and the 
interpretation of the constitution. And the doctrine has 
been recently revived with extraordinary zeal, and vindi- 
cated with uncommon vigour. (o) A majority of the states, 

ment without coercion is a proposition at once so absurd and self- 
contradictory, that the idea creates a confusion of the understand- 
ing. It is form without substance ; at best a body without a soul. 
If men would act right, governments of all kinds would be use- 
less. If states or nations, who are but assemblages of men, would 
do right, there would be no wars or disorders in the universe. Bad 
as individuals are, states are worse. Clothe men with public au- 
thority, and almost universally they consider themselves, as libe- 
rated from the obligations of moral rectitude, because they are no 
lono-er amenable to justice." 1 Amer. Mus. 290. 

(n) Madison's Virginia Report, January 1800, p. 6, 7, 8, 9 j Web- 
ster's Speeches, 407 to 409, 410, 411, 419 to 421. 

(o) The legislature of Virginia in 1829, resolved that there is no 
common arbiter to construe the constitution of the United States ; 
the constitution being a federative compact between sovereign 
states, each state has a right to construe the compact for itself." 
Georgia and South Carolina have recently maintained the same 
doctrine ; and it has been asserted in the senate of the United 
States, with an uncommon display of eloquence and pertinacity." 
It is not a little remarkable, that in 1810, the legislature of Virgi- 
nia thought very differently, and then deemed the supreme court 
a fit and impartial tribunal.! Pennsylvania at the same time, though 
she did not deny the court to be, under the constitution, the appro- 

[* It will be seen in the sequel that we contend for no such un- 
qualified proposition, but deny as earnestly as our author, the whole 
notion of nullification. It is not necessary to enter upon the sub- 
ject here.] 

* 9 Dane's Abridg. ch. 187, art. 20, $ 13, p. 589, &c. 591 ; Dane's App. 52 to 59, 
67 to 72 ; 3 American Annual Register, Local Hist. 131. 

t North American Review, October 1830, p. 509, 512 ; 6 Wheat R. 358. 

13 



146 LECTURES ON 

however, have never assented to this doctrine ; and it has 
been, at different times, resisted by the legislatures of se- 
veral of the states, in the most formal declarations.(p) 

" § 371. But if it were admitted that the constitution is 
a» compact, the conclusion, that there is no common arbi- 
ter, would neither be a necessary, nor natural conclusion 
from that fact standing alone. To decide upon the point, 
it would still behove us to examine the very terms of the 
constitution, and the delegation of powers under it. It 
would be perfectly competent even for confederated states 
to agree upon, and delegate authority to construe the com- 
pact to a common arbiter. The people of the United States 
had an unquestionable right to confide this power to the go- 
vernment of the United States, or to any department there- 
of, if they chose so to do. The question is, whether they 
have done it. If they have, it becomes obligatory and 
binding upon all the states. 

priate tribunal, was desirous of substituting some other arbiter.* 
The recent resolutions of her own legislature (in March 1831) 
shew, that she now approves of the supreme court, as the true and 
common arbiter. One of the expositions of the doctrine is, that if 
a single state denies a power to exist under the constitution, that 
power is to be deemed defunct, unless three fourths of the states 
shall afterwards reinstate that power by an amendment to the con- 
stitution. t What, then, is to be done, where ten states resolve, that 
a power exists, and one, that it does not exist? See Mr. vice-pre- 
sident Calhoun's letter of 28th August 1832, to Gov. Hamilton. 

{p) Massachusetts openly opposed it in the resolutions of her legis- 
lature of the 12th of February 1799, and declared, "that the deci- 
sion of all cases in law and equity arising under the constitution 
of the United States, and the construction of all laws made in pur- 
suance thereof, are exclusively vested by the people, in the judicial 
courts of the United States "t Six other states, at that time, seem 
to have come to the same result. § And on other occasions, a larger 
number have concurred on the same point. |1 Similar resolutions 
have been passed by the legislatures of Delaware and Connecticut 
in 1831, and by some other states. How is it possible, for a mo- 
ment, to reconcile the notion, that each state is the supreme judge 
for itself of the construction of the constitution, with the very first 
resolution of the convention, which formed the constitution : " Re- 
solved, &c. that a national government ought to be established, 
consisting of a supreme legislative, judiciary and executive .'"H 

* North American Review, id. 507, 508. 

1 4 Elliot's Debates, 320, 321. 

j Dane's App. 58. 

^ North Amerian Review, October 1830, p. 500. 

|"| Dane's App. 67 ; id. .52 to 59. 

IT Journals of Convention, 83 ; 4 Elliot's Deb. 49. 



CONSTITUTIONAL LAW. 147 

" § 372. It is not, then, by artificial reasoning founded 
upon theory, but upon a careful survey of the language of 
the constitution itself, that we are to interpret its powers, 
and its obligations. We are to treat it, as it purports on 
its face to be, as a constitution of government ; and we 
are to reject all other appellations, and definitions of it, 
such, as that it is a compact, especially as they may mis- 
lead us into false constructions and glosses, and can have 
no tendency to instruct us in its real objects." 



LECTURES ON CONSTITUTIONAL LAW. 149 



LECTURE VI. 

Having thus presented at length judge Story's views of 
the nature of the constitution of the United States, I shall 
now proceed to a critical examination of some of his po- 
sitions. The principal foundation upon which they rest, 
is the assumption that the states are not parties to the con- 
stitution ; that it is the act of the people of the United 
States as a nation ; that it is therefore not a compact, and 
that our institutions are national not federative. My first 
duty, therefore, shall be to shew, that these assumptions 
are not warranted by the history of the transaction. I shall 
contend 

1. That the formation of the constitution was in its ori- 
gination, its progress, and its final ratification, the act of 
the states as free and independent sovereignties, and not 
of the whole people of America as one people. (a) 

2. That if the sovereignty of the states be admitted, no 
constitution could have been made without the assent of 
those sovereignties. 

3. That if it be the act of the states, it is a compact ; 
a compact to establish a particular form of government or 
system of polity for the conduct of the external relations 
of the states, and for some other specified purposes. 

And first, it was the act of the states as sovereignties, 
and not of the whole people of America as one people. 

This proposition affirms, in the first place, that when the 
constitution of the United States was formed and adopted, 
the several states of the Union were sovereign and inde- 

(o) In the case of Martin v. Hunter, judge Story, for the supreme 
court, said, that "the constitution of the United States was or- 
dained and established, not by the states in their sovereign capaci- 
ty, but, emphatically, as the preamble of the constitution declares, 
by the people of the United States." I offer as a set-off" to this, 
the remark of the venerable judge Pendleton, in 2 W. 298, "that 
though the different states of America form a confederated govern- 
ment, yet the several states retain their individual sovereignties, 
and with respect to their municipal laws are to each other foreign." 
If their original sovereignties are retained, how could the consti- 
tution be formed but by their act as a federal compact.' 

13* 



150 LECTURES ON 

pendent. The truth of the proposition is abundantly ma- 
nifest. Whatever may be our speculations on the subject 
of the relation of the colonies towards each other before 
or after the declaration of independence, the articles of 
confederation leave no doubt of the character of its mem- 
bers subsequent to its adoption. In the second section, it 
is formally declared that each state retains its sovereignty, 
freedom and independence, so that the clause in effect has 
the operation of an assertion by each, and an acknowledg- 
ment by all, of their respective pretensions to the charac- 
ter of sovereign and independent states. 

Such being their condition when the articles of confe- 
deration were adopted, the confederation itself was nothing 
but a league between sovereign powers, in which, no power 
not expressly delegated, was possessed by the league, but 
every power, jurisdiction and right, not expressly delega- 
ted, was retained by the states. 

The league was declared to be perpetual and unaltera- 
ble, except by the consent of every state : and it was rati- 
fied and signed by the delegates of the several states who 
" solemnly plighted and engaged the faith of their respec- 
tive constituents {the states) for its observance." 

The league thus made, having been declared to be per- 
petual, could only have been properly dissolved by those 
who made it ; i. e. by the states, as sovereignties, by whose 
authority it had been adopted. Accordingly, when in 
1786, as we have already seen, the difficulties and embar- 
rassments of the existing state of things, suggested the ab- 
solute necessity of a change, certain commissioners were 
appointed by the legislature of the state of Virginia, one 
of the sovereign parties to the confederacy, to meet other 
commissioners from the other states, for the purpose of 
proposing amendments to the confederation. These com- 
missioners were agents and representatives of the respec- 
tive state sovereignties, and acted as such ; each delega- 
tion acting for itself, voting for itself, and the majority of 
each giving the vote of its state.(6) The representatives 
of the five states who assembled, recommended to congress, 
the appointment (with the assent of the states) of a con- 
vention to meet at Philadelphia. What was congress? It 

(b) See 1 L. U. S. 55. 



CONSTITUTIONAL LAW. 151 

was an assembly of states, by their separate and distinct 
delegations, without a single trait of national government. 
Their action was of course state action. They did re- 
commend the appointment of delegates by the states to a 
general convention of the states in Philadelphia. The 
states accordingly, — aye, the very legislatures themselves, 
representing the state sovereignty, — appointed delegates 
with separate commissions and instructions. The people 
had no agency in this, except through their legislatures. 
Thus far, then, all is clearly state action. The convention 
met. Of whom was it composed ? Of delegates represent' 
ing the states through the state legislatures. Having thus 
met as delegates of state sovereignties, could they put off 
that character and assume that of representatives of the 
people, as forming one nation or people? They could not, 
neither did they attempt it. On the contrary, they acted 
throughout as the representatives of separate state sove- 
reignties. They voted throughout by states. The dele- 
gates from each state voted together, and the majority of 
the delegation gave the vote of the state. Nor was this 
all. Every measure was decided by the majority of states, 
not of individual votes. Every state had an equal weight 
in this great council of sovereigns. The dwarf and the 
giant were upon an equality. Delaware and Pennsylvania, 
Georgia and New York — all were equal, for all were so- 
vereigns ; and in the estimate of the law of nations, every 
sovereign has equal rights with others. In all these pro- 
ceedings, we see not a single feature of nationality, but 
every distinctive characteristic of state action. The dele- 
gates had been appointed for states, they acted accord- 
ingly for states, and they voted bi/ states. Even 6y states 
they voted upon the final adoption of the constitution. In 
what character, then, was the act done by them? In what 
character onli/ could it have been done ? Could it have 
been done in any other character than as representatives 
of the states ? Could they laivfuUy put off the character 
given them and throw up their commissions, and yet con- 
tinue to act, and to act in another character ? Could they 
not only put off the character they held, but also assume 
the character of representatives of the people, by whom 
they were not appointed, and even of the whole people of 
the Union, with a large portion of whom they had no sort 



152 LECTURES ON 

of communion. It would have been rank usurpation, and 
the act would have been void, as totally destitute of autho- 
rity. Of this they did not dream. They signed the draft 
of the constitution as an act of the states. The attesta- 
tion is, " Done in convention hy the unanimous consent of 
the STATES present" and each delegation signed sepa- 
rately and apart from the others. What then becomes of 
the pretence, that " We the people of the United States," 
means the people nationally, as one whole, and not the 
people of each state with the people of the other states ? 
What justifies the assertion, that " the constitution was 
ordained and established " not hy the states in their sove- 
reign capacities," but emphatically as the preamble of 
the constitution declares, " by the people of the United 
States?" If this was the meaning of the words " We the 
people of the United States," in the constitution, then, as 
I have already said, the whole act was an usurpation, since 
the delegates were not empowered to act but for the states 
in their sovereign capacities. Shall we, then, by a forced 
construction, attribute to the delegates an action in a cha- 
racter which they did not possess, and which in no other 
part of their proceedings they appear to have arrogated ? 
Shall we gratuitously attribute to them usurpation, when 
the language used by them, is as fairly applicable to the 
character they really filled ? Shall we suppose that the 
whole convention nem. con. with one consent, but without 
any formal proposition to that effect, agreed to put off the 
character that really belonged to them, and to usurp one 
that did not, and that at the head of these was the patriot 
Washington, the president of the convention, and deputy 
from Virginia? Credat jiidceus appella, non ego ! 

It is of no little importance in the consideration of the 
import of these words, to remark upon the received mean- 
ing of the words United States, at the time of the adop- 
tion of the constitution. Did those words, in common 
acceptation, or, according to technical use or philo- 
logical accuracy, mean one people or thirteen sovereign- 
ties? There is little reason to doubt that, in common par- 
lance, "United States" implied the several political bodies 
which had united for common defence. Such is its true 
meaning philologically, for when we speak of things united, 
we imply a previous separation of the parts. But what is 



CONSTITUTIONAL LAW. 153 

conclusive, the words are used in the articles of confedera- 
tion itself, not as indicating oneness or nationality, but as 
applying to thirteen distinct sovereignties. The first arti- 
cle declares that " The style of the confederacy shall be 
THE United States of America," while in the very next, 
the separate sovereignty of each state is anxiously secured. 
" United States," therefore, does not mean one people, but 
several peoples united, and in this sense must the delegates 
appointed under that confederation have used the language. 
For where known words are used, to which a distinct 
meaning has attached, the accustomed interpretation oT 
them must be followed ; and, as under the confedera- 
tion, the words " United States" could not imply one 
whole, because the parts were kept distinct, so the same 
words cannot, in the constitution, mean one whole, but the 
several parts. " We, the people of the United States," 
therefore, means " We, the people of the several states 
composing this confederacy," and not " We, the people of 
thetJnited States constituting one people." In the former 
sense it was natural that it should be used by delegates re- 
presenting distinct states, for when they used those words 
they were acting under the confederacy, and used them as 
used in the articles themselves ; but it is altogether un- 
natural, that in speaking of an act done while the confede- 
racy still subsisted, they should use expressions which im- 
plied its obliteration at the moment of their use. They 
could not, with truth, speak of the people as one whole in 
the act of forming the constitution ; for they were then thir- 
teen distinct states under the confederation, and even if they 
became one, by the adoption of the constitution, they were 
not one in the act of its formation. 

Let us proceed. After the adoption of the plan of the 
constitution by the convention, that body again met; 
" present, the states of New Hampshire," &lc. (enume- 
rating them,) and resolved that the constitution should be 
laid before congress, and afterwards submitted to a conven- 
tion of delegates, chosen in each state by the people 
thereof, under the recommendation of its legislature, for 
their assent. Here then we see that there was, in the rati- 
fication, to be a separate action of each state, under the 
recommendation of" its regularly constituted organ. And 
the reason why it was referred to the people for adoption, 



154 LECTURES ON 

and not to the legislatures, was that before given, and 
strongly stated by judge Story himself, vol. 1, p. 330. The 
ordinary legislatures having been empowered merely to ad- 
minister the state constitutions, such as they were, had no 
power to enlarge or limit their own powers by transferring 
them to another, and still less to give away the powers of 
the state without its authority. 

But what were the conventions thus formed? They 
came directly from, and did, beyond question, represent 
the people. But what people 1 The people of the state as 
a sovereign state, or a part of the people of the United 
States, considered as one whole ? Undoubtedly the former, 
for the ratification was to be by states. Each state con- 
vention met separately, acted separately, adopted separate- 
ly. The whole action of the conventions, then, was state 
action. It could not be otherwise. The states were still 
sovereign. They were still in the bonds of the confede- 
racy. These could only be thrown off, as I have already 
said, by state action, since the states themselves had im- 
posed them. All this is rendered beyond question, by the 
ratifications of the respective conventions. These ratifica- 
tions, in almost every instance, distinctly evince state ac- 
tion on the part of the conventions. They are too im- 
portant to the question before us to be entirely omitted. 
Short extracts follow : 

Delaware. We, the deputies of the people of Delaware 
state, &c., &c., in virtue of the power and authority to us 
given, for and in behalf of ourselves and our constituents, 
do ratify and confirm, &c. 

Pennsylvania. We, the delegates of the people of the 
commonwealth of Pennsylvania do, in the name and hy the 
authority of the same people, ratify, &c. 

Neio Jersey. We, the delegates of the state of New 
Jersey, do hereby, for and on behalf of the people of the 
said state, agree to, &c. 

Connecticut. In the naine of the people of the state of 
Connecticut. We, the delegates of the people of the said 
state, have, &c. 

Massachusetts. The convention having impartially dis- 
cussed, &LQ,., do, in the name and in behalf of the common- 
wealth of Massachusetts, assent to and ratify the said con- 
stitution, &-C. 



CONSTITUTIONAL LAW. 155 

Georgia. We, the delegates of the people of the state 
of Georgia, have assented to, &-c., in virtue of the powers 
and authority given to us by the people of the said state. 

Maryland. We, the delegates of the people of Mary- 
land, having, &c., do, for ourselves, and in the name and 
on the behalf of the people of this state, ratify, &c. 

South Carolina. In convention of the people of South 
Carolina, by their representatives; the convention, &c., 
&c., do,m the name and behalf of the people of this state, 
assent to, &c. 

New Hampshire. In convention of the delegates of the 
people of the state of New Hampshire. The convention 
do, in the name and behalf of the people of Neio Hamp- 
shire, &c. ratify, &lc. 

Virginia. We, the delegates of the people of Virginia, 
do, in the name and behalf of the people of Virginia, as- 
sent to, &c. 

Neio York. We, the delegates of the people of the state 
of Neio York, in the name and behalf of the people of Neio 
York, do, &,c. 

North Carolina. Resolved that this convention, in be- 
half of the freemen, citizens and inhabitants of North 
Carolina, do adopt, &c. 

Rhode Island. We the delegates of the people of the 
state of Rhode Island, in the name and behalf of the peo- 
ple of the said state, &c. 

Thus, with all deference to the learned commentator, it 
appears to me that in the origin, progress and adoption of 
the constitution of the United States, the states, free, so- 
vereign and independent, were the actors, and emphati- 
cally the parties. The ratifications evince, beyond ques- 
tion, that in the adoption of the constitution, each con- 
vention represented its own state only, and assented to the 
plan of government in the naine and behalf of the. people 
thereof. It can never be too much regretted that the able 
commentator, whose work is destined to be so much the 
manual of our youth, should, in his account of the ratifi- 
cations by the states, have omitted this important fact, 
which takes away the whole force of the argument so much 
insisted on as to the first words of the constitution. It is 
contended, that, as the convention has used the language 
" We the people of the United States," the act was in the 



156 LECTURES ON 

name and behalf of the whole people, and not " of the 
people of the respective states;" whereas all the ratifica- 
tions being, in fact, in the name and behalf of the respec- 
tive states, the last clinching act done by conventions, act- 
ing distinctly for the people of each state alone, establishes, 
beyond question, that the constitution is the act of the 
states as such, and not of the people of the whole United 
States as one people. 

Nothing then is wanting to refute the positions that the 
constitution " was not ordained and established by the 
states in their sovereign capacities," and " that the states 
were not the parties to the instrument." For if the states 
had not ratified it, the projet would have been defeated ; 
and as it was ratified by states or conventions, in the name 
and in behalf of states who were then at least sovereign, it 
must derive its whole vigour, force and effect from the ac- 
tion of those sovereign states themselves. 

The considerations which go to establish this view of 
, the matter are abounding. Among others, we ought not 
to omit some provisions on the face of the constitution itself. 
Thus it is provided, that the legislatures of the states may 
propose amendments, and that amendments, when proposed, 
shall be adopted by legislatures or conventions of three 
fourths of the states — not three fourths of the lohole popula- 
tion of the United States; thus distinctly shewing that the 
sovereignties are looked to as the parties, and their rights re- 
spected as such upon the principles of national law. On 
what other principle could we justify the election of a pre- 
sident by the house of representatives — 

" that great Procrustes bed, 
The acknowledged work of huckstering compromise ; 
On which the sov'reign states are prostrate laid 
And stretched or clipped to the same common size : 
Where the leviathan with all its pride, 
Shrinks to a minnow ; or the pigmy fay 
Grown to a giant, with important stride. 
And new born power struts its hour away, 
Then shrinks again its humbler part to play." 

Again, how is it, if this was a national government, and 
one "not ordained by the states," that only those states 
were bound who ratified ? Why, as in all national govern- 
ments, did not the majority prevail and bind the rest? 
Why, as in all federal compacts, were none bound but 



CONSTITUTIONAL LAW. 157 

those who ratified ? Why, but because it was a govern- 
ment of federative character ? 

New states formed out of old states, or parts of old 
states, may be admitted into the union. In what character ? 
And in what character do they come under the obligations 
of the constitution? As states. Could a portion of the 
people, who had not formed a government, and erected 
themselves into a state, enter the union? Assuredly not; 
for they could have no representative in the senate, as they 
would have no legislature to elect one. Thus, so far fro:n 
not being a government of states, it is a government which 
can only subsist by states and to which states alone are 
parties. 

A person charged with treason against any state, and 
fleeing from justice, shall be delivered up. Treason, then, 
the crimen Icbscb mqjistatis, can be committed against a 
state; it is, therefore, conceded by the constitution itself 
to be sovereign ; and if sovereign, it can only be bound 
by its own act and consent. It must then be a party to 
the constitution, or the constitution has no existence. 

The inhibitions upon the exercise of powers by states, 
in art. 1, ^ 10, are all admissions of state sovereignty. 
That section restrains the exercise of sovereign powers 
which did belong to the states, but which they have con- 
sented to forego for the public good. 

The citizens of each state are secured the privileges of 
citizens in every other. Evidences might be further mul- 
tiplied, derived from the " face of the constitution" itself, 
of the admitted sovereignty of the states, and of the fact 
that they were the contracting parties in the formation of 
the government. It was ordained and established by the 
people, indeed, but by the people of the several communi- 
ties constituting separate and distinct states. It was the 
work of thirteen lesser sovereignties, and not of one great 
sovereignty. The thirteen states have never yet been fused 
into one common mass. There is no act by which the 
people of them respectively/ have put off their separate so- 
vereignty, and been melted into one whole. They still 
retain that sovereignty, and are, and have ever been in the 
actual exercise of it, except so far as they disrobed them- 
selves, by the grant of certain powers to the government of 
the United States. All other powers are reserved to the 
14 



158 LECTURES ON 

States respectively , or to the people ; a significant expres- 
sion, denoting a continued distinctness of the several sove- 
reignties composing this great confederacy. 

I have not thought it necessary in this examination of 
the character of the government to array the arguments of 
the authors of the Federalist on the subject, demonstrating 
that the constitution of the United States is partly national 
and partly federal ; since they have been so recently the 
subject of your studies, as to be fresh in your recollec- 
tions. But it would be improper not to advert to the let- 
ter of the convention to congress, in which it is declared 
"to be obviously impracticable in the federal government 
of these states" (still recognizing their political character) 
" to secure all rights o^ independent sovereignty to each, 
and yet provide for the interest and safety of all. Indivi- 
duals entering into society must give up a share of liberty 
to preserve the rest." And so it was necessary to give up 
a part of the rights of independent sovereignty to secure 
the residue. But it is obvious, from the whole letter, that 
the convention looked upon their act as the act of the 
states, and not of individuals. " The constitution," says 
the Federalist, " is founded indeed, on the assent and rati- 
fication of the people of America, given by delegates elect- 
ed for the special purpose ; but this assent and ratification 
is to be given by the whole people, not as individuals com- 
posing one entire nation, but as composing the distinct and 
independent states, to which they respectively belong. It 
is to be the assent and ratification of the several states, de- 
rived from the supreme authority in each state, the people 
THEMSELVES. The act, therefore, establishing the consti- 
tution will NOT BE A NATIONAL, BUT A FEDERAL ACT." 

Such is the language of the Federalist, (c) written pending 
the controversies respecting the constitution, to reconcile 
the people to the plan of governmenl, and to remove among 
others, the vital objection, that it was national, and not fe- 
deral in its character. In like manner, one of the authors 
of those papers, at a later date, tells us that the constitu- 
tion of the United States " was not formed by a majority 
of the people of the United States, as a single community, 
in the manner of a consolidated government. It was formed 

(c) No. 39. 



CONSTITUTIONAL LAW. 159 

by the states, that is, by the people in each of the states, 
acting in their highest sovereign capacity, and formed con- 
sequently by the same authority which formed the state 
constitutions. "(f/) 

With these prominent evidences before him, it is truly re- 
markable that judge Story should have ventured on the 
assertion, (e) that although the opponents of the constitu- 
tion, on many occasions, pressed the objection that it 
was a consolidated government, and contrasted it with a 
confederative, yet none of its advocates pretended to deny 
that its design was to establish a national government , as con- 
tradistinguished from a mere league or treaty, however they 
might oppose the suggestion that " it was a consolidation 
of the states." The passage already quoted from the Fe- 
deralist proves that those papers alleged it " not to he a 
national but a federal act." And Mr. Madison, an advo- 
cate for the constitution in the Virginia convention, (/*) ob- 
viously using the word " consolidated" as " national," ob- 
serves, " I conceive, myself, the government is of a mixed 
nature. In some respects it is of a federal nature, in others 
it is of a consolidated nature. Who are parties to it? The 
people ; but not the people as composing one great body, 
but the people as composing thirteen sovereignties." And 
if this be so, how can the government be otherwise than 
the act of the states as distinct sovereignties? "If," he 
continues, "it were a consolidated" [i. e. national] "go- 
vernment, the assent of a majority of the people would be 
sufficient for its establishment, (^) and as a majority [of 
the whole people of the United States] have adopted it al- 
ready, the remaining states would be bound by the act of 
that majority, even if they unanimously reprobated it, and 
it would be now binding on this state without its having 
had the privilege of deliberation on it : but as it is, no 

{d) Mr. Madison's letter, quoted 1 Story 334. 

(e) Pa. 325. 

(/) Debates '76. 

[g) And so now for its abolition. But who will admit this power 
in the majority of the people of the Union, to abrogate by their 
voices this constitution, ordained and established by states ? Who 
will admit that the unanimous vote of three fourths of the popu- 
lation of the whole United States, can abrogate, or even alter the 
constitution, without the assent of three fourths of the states them- 
selves in their political capacity ? 



160 LECTURES ON 

state is bound by it, without its own consent. Should all 
the states adopt it, it will then be a government established 
by the thirteen states of America, not through the inter- 
vention of the legislatures, but by the people at large." 

2. I proceed now to my second proposition, that if the 
states were sovereign at the time of the adoption of the 
constitution of the United States, no constitution could 
have been made (without the assent of those sovereign- 
ties). (A) They are consequently parties to it. 

And here it may be necessary to refer to the well known 
distinction between the ordinary legislature, and the sove- 
reignty in each state. The legislature is not the sovereign 
power, though it represents it in the matters committed to 
its authority. The people of each state is the sovereign 
power of that state ; and the proposition therefore means 
that no constitution for the Union could have been adopted 
without the assent of the people of each state, as distinct 
and independent sovereignties. Such they were under the 
confederation, which recognized and declared the fact, if 
it could have been reasonably doubted before. But they 
would not have been sovereign, if the people of the rest of 
the Union could have bound them without their own as- 
sent. Now, if their assent was necessary ; if the consti- 
tution could not have been ordained without it, the consti- 
tution is the result of state action ; it is the creature of the 
states, and the states are consequently the parties to it. 

3. If the constitution be the result of state action, and 
if the STATES are parties to it, the constitution is a com- 
pact. And this seems sufficiently obvious, since the only 
method by which joint action between several states can 
take place, is compact or agreement. 

What then was the compact or agreement between the 
thirteen states in the adoption of the constitution ? I have 
already intimated the opinion, that the form or system of 
government was rather the result of the compact, than the 
compact itself The compact is to be found in the first 
clause, by which it was agreed between the states to estab- 
lish a particular form of government. This was a com- 
pact between the states with each other, and not between 

(/i) See Upshur's Review, 58. There is no power to change a 
government except the power which formed it. 



CONSTITUTIONAL LAW. 161 

then and their servants, appointed by them to administer 
the proposed government. These are but their agents, and 
their illegal acts are to be corrected by the remedies pre- 
scribed by the constitution. An attention to this distinc- 
tion will relieve us from much difficulty hereafter in con- 
sidering some interesting questions. 

After this tedious examination, I shall close these re- 
marks on this part of our subject, with a further extract 
from judge Upshur's masterly discussion of it : 

" The third division of the work commences with a his- 
tory of the adoption of the constitution. This, also, is gi- 
ven in an abridged form ; but it omits nothing which can 
be considered material to the enquiry. Perhaps the au- 
thor has fallen into one error, an unimportant one, certain- 
ly, in stating that, ' at the time and place appointed, the 
representatives of twelve states assembled.' When the de- 
puties first met in Philadelphia, in May 1787, the repre- 
sentatives of only nine states appeared ; they were, soon 
after, joined by those of three others. The author next 
proceeds to state the various objections which were urged 
against the constitution, with the replies thereto ; to exa- 
mine the nature of that instrument; to ascertain whether 
it be a compact or not ; to enquire who is the final judge 
or interpreter in constitutional controversies ; to lay down 
rules of interpretation; and, finally, to examine the con- 
stitution in its several departments and separate clauses. 
In the execution of this part of his task, he has displayed 
great research, laborious industry, and extensive judicial 
learning. The brief summary which he has given of the 
arguments by which the constitution was assailed on the 
one hand, and defended on the other, is not only interest- 
ing as matter of history, but affords great aid in under- 
standing that instrument. We should be careful, however, 
not to attach to these discussions an undue importance. 
All the members of the various conventions, did not en- 
gage in the debates, and, of course, we have no means of 
determining by what process of reasoning they were led to 
their conclusions. And we cannot reasonably suppose, 
that the debaters always expressed their deliberate and 
well weighed opinions in all the arguments, direct and col- 
lateral, by which they sought to achieve a single great pur- 
14* 



1'62 



LECTURES ON 



pose. We are not, therefore, to consider the constitution 
as the one thing or the other, merely because some of the 
framers, or some of the adopters of it, chose so to charac- 
terize it in their debates. Their arguments are valuable 
as guides to our judgments, but not as authority to bind 
them. 

"In the interpretation of the constitution, the author 
founds himself, whenever he can, upon the authority of the 
supreme court. This was to be expected ; for, in so do- 
ing, he has, in most cases, only reiterated his own judicial 
decisions. We could not suppose that one, whose opinions 
are not lightly adopted, would advance, as a commentator, 
a principle which he rejected as a judge. In most cases, 
too, no higher authority in the interpretation of the con- 
stitution is known in our systems, and none better could 
be desired. It is only in questions of political power, in- 
volving the rights of the states in reference to the federal 
government, that any class of politicians are disposed to 
deny the authority of the judgments of the supreme court. 
We shall have occasion to examine this subject more at 
large, in a subsequent part of this review. 

" In discussing the various clauses of the constitution, 
the author displays great research, and a thorough ac- 
quaintance with the history of that instrument. It is not 
perceived, however, that he has presented any new views 
of it, or offered any new arguments in support of the con- 
structions which it has heretofore received. As a compen- 
dium of what others have said and done upon the subject, 
his work is very valuable. It facilitates investigation, 
whilst, at the same time, it is so full of matter, as to ren- 
der little farther investigation necessary. Even in this view 
of the subject, however, it would have been much more va- 
luable, if it had contained references to the authorities on 
which its various positions are founded, instead of merely 
extracting their substance. The reader who, with this 
book as his guide, undertakes to acquaint himself with the 
constitution of the United States, must take the authority 
of the author as conclusive, in most cases ; or else he will 
often find himself perplexed to discover the sources from 
which he derives his information. This is a great defect 
in a work of this sort, and is the less excusable, because it 
might have been easily avoided. A writer who undertakes 



CONSTITUTIONAL LAW. 163 

to furnish a treatise upon a frame of government, in rela- 
tion to which great and contested political questions have 
arisen, owes it alike to his reader and to himself, to name 
the sources whence he draws whatever information he ven- 
tures to impart, and the authorities upon which he founds 
whatever opinions he ventures to inculcate. The reader re- 
quires this for the satisfaction of his own judgment; and 
the writer ought to desire it as affording the best evidence 
of his own truth and candour. 

" In this division of the work, the author pursues the 
idea cautiously hinted in the first division, and more plainly 
announced in the second ; and he now carries it boldly out 
in its results. Having informed us that, as colonies, we 
were ' for many purposes one people,' and that the decla- 
ration of independence made us ' a nation de facto,' he 
now assumes the broad ground that this ' one people,' or 
nation de facto, formed the constitution under which we 
live. The consequences of this position are very apparent 
throughout the remainder of the work. The inferences 
fairly deduced from it, impart to the constitution its dis- 
tinctive character, as the author understands it ; and, of 
course, if this fundamental position be wrong, that instru- 
ment is not, in many of its provisions, what he represents 
it to be. The reader, therefore, should settle this question 
for himself in the outset ; because, if he differ from the 
author upon this point, he will be compelled to reject by 
far the most important part of the third and principal divi- 
sion of these commentaries. 

" The opinion, that the constitution was formed by ' the 
people of the United States,' as contradistinguished from 
the people of the several states, that is, as contradistin- 
guished from the states as such, is founded exclusively on 
the particular terms of the preamble. The language is, 
' We, the people of the United States, do ordain and estab- 
lish this constitution for the United States of America.' 
' The people do ordain and establish, not contract and sti- 
pulate with each other. The people of the United States, 
not the distinct people of a particular state, with the peo- 
ple of the other states.' In thus relying on the language 
of the preamble, the author rejects the lights of history al- 
together. I will endeavour in the first place to meet him 
on his own ground. 



164 LECTURES ON 

" It is an admitted rule, that the preamble of a statute 
may be resorted to in the construction of it; and it may, 
of course, be used to the same extent in the construction 
of a constitution, which is a supreme law. But the only 
purpose for which it can be used is to aid in the discovery 
of the true object and intention of the law, where these 
would otherwise be doubtful. The preamble can, in no 
case, be allowed to contradict the law, or to vary the mean- 
ing of its plain language. Still less can it be used to change 
the true character of the law-malcing power. If the pre- 
amble of the constitution had declared that it was made by 
the people of France or England, it might, indeed, have 
been received as evidence of that fact, in the absence of 
all proof to the contrary ; but surely it would not be so 
received against the plain testimony of the instrument it- 
self, and the authentic history of the transaction. If the 
convention which formed the constitution was not, in point 
of fact, a convention of the people of the United States, it 
had no right to give itself that title; nor had it any right 
to act in that character, if it was appointed by a different 
power. And if the constitution, when formed, was adopt- 
ed by the several states, acting through their separate con- 
ventions, it is historically untrue that it was adopted by the 
aggregate people of the United States. The preamble, 
therefore, is of no sort of value in settling this question ; 
and it is matter of just surprise that it should be so often 
referred to, and so pertinaciously relied on, for that pur- 
pose. History alone can settle all difficulties upon this 
subject. 

" The history of the preamble itself ought to have con- 
vinced our author, that the inference which he draws from 
it could not be allowed. On the 6th of August 1787, the 
committee appointed for that purpose, reported the first 
draft of a constitution. The preamble was in these words : 
' We, the people of the states of New Hampshire, Massa- 
chusetts, Rhode Island and Providence Plantations, Con- 
necticut, New York, New Jersey, Pennsylvania, Delaware, 
Maryland, Virginia, North Carolina, South Carolina and 
Georgia, do ordain, declare and establish the following con- 
stitution, for the government of ourselves and our poste- 
rity.' (1 Elliot's Debates, 25<5.) On the very next day 
this preamble was unanimously adopted;' and the reader 



CONSTITUTIONAL LAW, 165 

will at once perceive, that it carefully preserves the dis- 
tinct sovereignty of the states, and discountenances all 
idea of consolidation, {lb. 263.) The draft of the con- 
stitution thus submitted was discussed, and various altera- 
tions and amendments adopted, (but without any change, 
in the preamble,) until the 8th of September 1787, when 
the following resolution was passed : ' It was moved and 
seconded to appoint a committee of five, to revise the style 
of, and arrange the articles agreed to, by the house ; which 
passed in the affirmative.' (76.324.) It is manifest that 
this committee had no power to change the meaning of any 
thing which had been adopted, but were authorized merely 
to ' revise the style,' and arrange the matter in proper or- 
der. On the 12th of the same month they made their re- 
port. The preamble, as they reported it, is in the follow- 
ing words : ' We, the people of the United States, in or- 
der to form a more perfect union, to establish justice, in- 
sure domestic tranquillity, provide for the common defence, 
promote the general welfare, and secure the blessings of 
liberty to ourselves and our posterity, do ordain and estab- 
lish this constitution for the United States of America.' 
(lb. 326.) It does not appear that any attempt was made 
to change this phraseology in any material point, or to re- 
instate the original. The presumption is, therefore, that 
the two were considered as substantially the same, par- 
ticularly as the committee had no authority to make any 
change, except in the style. The difference in the mere 
phraseology of the two was certainly not overlooked ; for 
on the 13th September 1787, ' it was moved and seconded 
to proceed to the comparing of the report from the com- 
mittee of revision, with the articles which were agreed to 
by the house, and to them referred for arrangement ; which 
passed in the affirmative. And the same was read by pa- 
ragraphs, compared, and, in some places, corrected and 
amended.' (lb. 338.) In what particulars these correc- 
tions and amendments were made, we are not very dis- 
tinctly informed. The only change which was made in 
the preamble was by striking out the word ' to,' before 
the words 'establish justice;' and the probability is, that 
no other change was made in any of the articles, except 
such as would make ' the report of the committee of revi- 
sion' — ' correspond with the articles agreed to by the 



166 LECTURES ON 

house.' The inference, therefore, is irresistible, that the 
convention considered the preamble reported by the com- 
mittee of revision, as substantially corresponding with the 
original draft, as unanimously ' agreed to by the house.' 

" There is, however, another and a perfectly conclusive 
reason for the change of phraseology, from the states by 
name, to the more general expression ' the United States;' 
and this, too, without supposing that it was intended there- 
by to convey a different idea as to the parties to the con- 
stitution. The revised draft contained a proviso, that the 
constitution should go into operation when adopted and 
ratified by nine states. It was, of course, uncertain whe- 
ther more than nine would adopt it, or not; and if they 
should not, it would be altogether improper to name them 
as parties to that instrument. As to one of them, Rhode 
Island, she was not even represented in the convention, and, 
consequently, the others had no sort of right to insert her 
as a party. Hence it became necessary to adopt a form of 
expression which would apply to those who should ratify 
the constitution, and not to those who should refuse to do 
so. The expression actually adopted answers that purpose 
fully. It means simply, ' We, the people of those states 
who have united for that purpose, do ordain,' &c. This 
construction corresponds with the historical fact, and re- 
conciles the language employed with the circumstances of 
the case. Indeed, similar language was not unusual, 
through the whole course of the revolution. ' The people 
of his majesty's colonies,' — ' the people of the United Co- 
lonies,' — ' the people of the United States,' are forms of 
expression which frequently occur, without intending to 
convey any other idea than that of the people of the seve- 
ral colonies or states. 

"It is, perhaps, not altogether unworthy of remark, in 
reference to this enquiry, that the word ' people' has no 
plural termination in our language. If it had, the proba- 
bility is that the expression would have been ' we, the peo- 
ples,' conveying, distinctly, the idea of the people of the 
several states. But, as no such plural termination is known 
in our language, the least that we can say is, that the want 
of it affords no argument in favour of the author's position. 

" This brief history of the preamble, collected from the 
Journals of the Convention, will be sufficient to shew that 



CONSTITUTIONAL LAW. 167 

the author has allowed it an undue influence in his con- 
struction of the constitution. It is not from such vague 
and uncertain premises, that conclusions, so important and 
controlling, can be wisely drawn. The author, however, 
is perfectly consistent with himself in the two characters 
in which he appears before us ; the commentator takes no 
ground which the judge does not furnish. It is remarka- 
ble that although this question was directly presented in 
the case of Martin v. Hunter's lessees, and although the 
fact, that the constitution of the United States ' was or- 
dained and established, not by the states in their sovereign 
capacities, but emphatically by the people of the United 
States,' is made the foundation of the judgment of the 
supreme court in that case ; yet, judge Story, in deliver- 
ing the opinion of the court, rests that position upon 
the preamble alone, and offers no other argument what- 
ever to support it. And this too, although, in his own 
opinion, upon the right decision of that case rested ' some 
of the most solid principles which have hitherto been 
supposed to sustain and protect the constitution of the 
United States.' It is much to be regretted, that principles 
so important should be advanced as mere dogmas, either 
by our judges, or by the instructers of our youth. 

" In this case, as in others, however, we ought not to be 
satisfied with simply proving that the author's conclusions 
are not warranted by the facts and arguments from which 
he derives them. Justice to the subject requires a much 
more full and detailed examination of this important and 
fundamental question. 

" I have endeavoured to shew, in the preceding part of 
this review, that the people of the several states, while in 
a colonial condition, were not ' one people' in any political 
sense of the terms ; that they did not become so by the de- 
claration of independence, but that each state became a 
complete and perfect sovereignty within its own limits ; 
that the revolutionary government, prior to the establish- 
ment of the confederation, was, emphatically, a government 
of the states as such, through congress, as their common 
agent and representative, and that, by the articles of con- 
federation, each state expressly reserved its entire sove- 
reignty and independence. In no one of the various con- 
ditions, through which we have hitherto traced them, do 



168 LECTURES ON 

we perceive any feature of consolidation; but their cha- 
racter as distinct and sovereign states is always carefully 
and jealously preserved. We are, then, to contemplate 
them as sovereign states, when the first movements towards 
the formation of the present constitution were made. 

"Our author has given a correct history of the preparatory 
steps towards the call of a convention. It was one of those 
remarkable events, (of which the history of the world af- 
fords many examples,) which have exerted the most im- 
portant influence upon the destiny of mankind, and yet 
have sprung from causes which did not originally look to 
any such results. It is true, the defects of the confedera- 
tion, and its total inadequacy to the purposes of an effective 
government, were generally acknowledged ; but I am not 
aware that any decisive step was taken in any of the states, 
for the formation of a better system, prior to the year 1786. 
In that year, the difficulties and embarrassments under 
which our trade suffered, in consequence of the conflicting 
and often hostile commercial regulations of the several 
states, suggested to the legislature of Virginia the necessity 
of forming among all the states a general system, calcu- 
lated to advance and protect the trade of all of them. 
They accordingly appointed commissioners, to meet, at 
Annapolis, commissioners from such of the other states as 
should approve of the proceeding, for the purpose of pre- 
paring a uniform plan of commercial regulations, which 
was to be submitted to all the states, and, if by them rati- 
fied and adopted, to be executed by congress. Such of 
the commissioners as met, however, soon discovered that 
the execution of the particular trust with which they were 
clothed, involved other subjects not within their commis- 
sion, and which could not be properly adjusted without a 
great enlargement of their powers. They therefore sim- 
ply reported this fact, and recommended to their respective 
legislatures to appoint delegates to meet in general conven- 
tion in Philadelphia, for the purpose not merely of forming 
a uniform system of commercial regulations, but of re- 
forming the government in any and every particular in 
which the interests of the states might require it. This 
report was also transmitted to congress, who approved of 
the recommendation it contained, and on the 21 st of Feb- 
ruary 1787, resolved, * that in the opinion of congress it 



CONSTITUTIONAL LAW. 169 

is expedient that on the second Monday in May next, a 
convention of delegates, who shall have been appointed by 
the several states, be held at Philadelphia, for the sole and 
express purpose of revising the articles of confederation, 
and reporting to congress and the several legislatures, such 
alterations and provisions therein, as shall, when agreed 
to in congress, and confirmed by the states, render the fe- 
deral constitution, adequate to the exigencies of govern- 
ment, and the preservation of the union.' (1 Elliot's De- 
bates, 155.) 

"Such was the origin of the convention of 1787. It is 
apparent that the delegates to that body were to be ' ap- 
pointed by the several states,' and not by ' the people of 
the United States ;' that they were to report their proceed- 
ings to ' congress and the several legislatures,' and not to 
' the people of the United States ;' and that their proceed- 
ings were to be part of the constitution, only when ' agreed 
to in congress and confirmed by the states,' and not 
when confirmed by ' the people of the United States.' Ac- 
cordingly, delegates were, in point of fact, appointed by 
the states; those delegates did, in point of fact, report to 
congress and the states ; and congress did, in point of fact, 
approve, and the states did, in point of fact, adopt, ratify 
and confirm the constitution which they formed. No other 
agency than that of the states as such, and of congress, 
which was strictly the representative of the states, is to be 
discerned in any part of this whole proceeding. We may 
well ask, therefore, from what unknown source our author 
derives the idea, that the constitution was formed by ' the 
people of the United States,' since the history of the trans- 
action, even as he has himself detailed it, proves that 'the 
people of the United States,' did not appoint delegates to 
the convention, were not represented in that body, and did 
not adopt and confirm its act as their own ! 

" Even, however, if the question now before us be not, 
merely and exclusively, a question of historical fact, there 
are other views of it scarcely less decisive against our au- 
thor's position. In the first place, I have to remark, that 
there were no such people as ' the people of the United States,' 
in the sense in which he uses those terms. The articles 
of confederation formed, at that time, the only government 
of the United States; and, of course, we are to collect 
15 



170 LECTURES ON 

from them alone the true nature of the connexion of the 
states with one another. Without deeming it necessary to 
enumerate all the powers which they conferred on con- 
gress, it is sufficient to remark that they were all exercised 
in the name of the states, as free, sovereign and indepen- 
dent states. Congress was, in the strictest sense, the re- 
presentative of the states. The members were appointed 
by the states, in whatever mode each state might choose, 
without reference either to congress or the other states. 
They could, at their own will and pleasure, recall their re- 
presentatives, and send others in their places, precisely as 
any sovereign may recall his minister at a foreign court. 
The members voted in congress by states, each state hav- 
ing one vote, whatever might be the number of its repre- 
sentatives. There was no president, or other common exe- 
cutive head. The states alone, as to all the more impor- 
tant operations of the government, were relied on to exe- 
cute the resolves of congress. In all this, and in other 
features of the confederation, which it is unnecessary to 
enumerate, we recognize a league between independent 
sovereignties, and not one nation composed of all of them 
together. It would seem to follow, as a necessary conse- 
quence, that if the states, thus united together by league, 
did not form one nation, there could not be a citizen or 
subject of that nation. Indeed, congress had 710 power to 
make such citizen, cither by naturalization or otherwise. 
It is true, the citizens of every state were entitled, with 
certain exceptions, such as paupers, vagabonds, &c. to all 
the privileges of citizens of every other state, when with- 
in the territories thereof; but this was by express compact 
in the articles of confederation, and did not otherwise re- 
sult from the nature of their political connexion. It was 
only by virtue of citizenship in some particular state, that 
its citizens could enjoy within any other state the rights of 
citizens thereof. They were not known as citizens of the 
United States, in the legislation either of congress or of 
the several states. He who ceased to be a citizen of some 
particular state, without becoming a citizen of some other 
particular state, forfeited all the rights of a citizen in each 
and all of the states. There was no one right which the 
citizen could exercise, and no one duty which he could be 
called on to perform, except as a citizen of some particu- 



CONSTITUTIONAL LAW. 171 

lar state. In that character alone could he own real es- 
tate, vote at elections, sue or be sued ; and in that cha- 
racter alone could he be called on to bear arms, or to pay 
taxes. 

" What, then, was this citizenship of the United States, 
which involved no allegiance, conferred no right, and sub- 
jected to no duty ? Who were ' the people of the United 
States?' Where was their domicil, and what were the po- 
litical relations, which they bore to another ? What was 
their sovereignty, and what was the nature of the allegi- 
ance which it claimed? Whenever these questions shall 
be satisfactorily answered without designating the people 
of the several states distinctively as such, 1 shall feel my- 
self in possession of new and unexpected lights upon the 
subject. 

" Even, however, if we concede that there was such a 
people as ' the people of the United States,' our author's 
position is still untenable. I admit that the people of any 
country may, if they choose, alter, amend or abrogate 
their form of government, or establish a new^ one, without 
invoking the aid of their constituted authorities. They 
may do this, simply because they have the physical power 
to do it, and not because such a proceeding would be either 
wise, just, or expedient. It would be revolution in the 
strictest sense of the term. Be this as it may, no one ever 
supposed that this course was pursued in the case under 
consideration. Every measure, both for the calling of the 
convention, and for the ratification of the constitution, was 
adopted in strict conformity with the recommendations, re- 
solutions and laws of congress and the state legislatures. 
And as ' the people of the United States' did not, in point 
of fact, take the subject into their own hands, independent 
of the constituted authorities, they could not do it by any 
agency of those authorities. So far as the federal govern- 
ment was concerned, the articles of confederation, from 
which alone it derived its power, contained no provision 
by which 'the people of the United States' could express 
authoritatively a joint and common purpose to change their 
government. A law of congress authorizing them to do 
so would have been void, for want of right in that body to 
pass it. No mode, which congress might have prescribed 
for ascertaining the will of the people upon the subject, 



173 LECTURES ON 

could have had that sanction of legal authority, which 
would have been absolutely necessary to give it force and 
effect. It is equally clear that there was no right or power 
reserved to the states themselves, by virtue of which, any 
such authoritative expression of the common will and pur- 
pose of the people of all the states could have been made. 
The power and jurisdiction of each state were limited to 
its own territory ; it had no power to legislate for the peo- 
ple of any other state. No single state, therefore, could 
have effected such an object; and if they had all concur- 
red in it, each acting, as it was only authorized to act, for 
itself, that would have been strictly the action of the states 
as such, and as contradistinguished from the action of the 
mass of the people of all the states. If ' the people of the 
United States' could not, by any aid to be derived from 
their common government, have effected such a change in 
their constitution, that government itself was equally des- 
titute of all power to do so. The only clause in the arti- 
cles of confederation, touching this subject, is in the fol- 
lowing words : ' And the articles of this confederation 
shall be inviolably observed by every state, and the union 
shall be perpetual ; nor shall any alteration, at any time 
hereafter, be made in any of them, unless such alteration 
be agreed to in the congress of the United States, and be 
afterivards confirmed by the legislature of every state.' 
Even if this power had been given to congress alone, with- 
out subjecting the exercise of it to the negative of the 
states, it would still have been the power of the states in 
their separate and independent capacities, and not the 
power of the people of the United States, as contradistin- 
guished from them. For congress was, as we have already 
remarked, strictly the representative of the states ; and 
each state, being entitled to one vote, and one only, was 
precisely equal, in the deliberations of that body, to each 
other state. Nothing less, therefore, than a majority of 
the states, could have carried the measure in question, 
even in congress. But, surely there can be no doubt that 
the power to change their common government was re- 
served to the states alone, when we see it expressly provi- 
ded that nothing less than their unani?nous consent^ as 
states, should be sufficient to effect that object. 



CONSTITUTIONAL LAW. 173 

" There is yet another view of this subject. It results 
from the nature of all government, freely and voluntarily 
established, that there is no power to change, except the 
power which formed it. It will scarcely be denied by any 
one, that the confederation was a government strictly of 
the states, formed by them as such, and deriving all its 
powers from their consent and agreement. What autho- 
rity was there, superior to the states, which could undo 
their work? What power was there, other than that of the 
states themselves, which was authorized to declare that 
their solemn league and agreement should be abrogated 1 
Could a majority of the people of all the states have done 
it? If so, whence did they derive that right? Certainly 
not from any agreement among the states, or the people of 
all the states ; and it could not be legitimately derived from 
any other source. If, therefore, they had exercised such 
a power, it would have been a plain act of usurpation and 
violence. Besides, if we may judge from the apportionment 
of representation as proposed in the convention, a majority 
of the people of all the states were to be found in the four 
states of Massachusetts, New York, Pennsylvania and Vir- 
ginia; so that, upon this idea, the people of less than one 
third of all the states could change the articles of confe- 
deration, although those articles expressly provided that 
they should not be changed without the consent of all the 
stoics ! There was, then, no power superior to the power 
of the states ; and consequently, there was no power which 
could alter or abolish the government which they had es- 
tablished. If the constitution has superceded the articles 
of confederation, it is because the parties to those articles 
have agreed that it should be so. If they have not so 
agreed, there is no such constitution, and the articles of 
confederation are still the only political tie among the 
states. We need not, however, look beyond the attestation 
of the constitution itself, for full evidence upon this point. 
It professes to have been ' done by the unanimous consent 
of the states present,' &c., and not in the name or by the 
authority of 'the people of the United States.' 

" But it is not the mere framing of a constitution which 

gives it authority as such. It becomes obligatory only by 

its adoption and ratification ; and surely that act, I speak 

of free and voluntary government, makes it the constitu- 

15* 



174 LECTURES ON 

tion of those only who do adopt it. Let us ascertian then, 
from the authentic history of the times, by whom our con- 
stitution was adopted and ratified. 

" The resolution of congress already quoted, contem- 
plates a convention ' for the sole and express purpose of 
revising the articles of confederation,' and reporting suit- 
able ' alterations and provisions therein.' The proceed- 
ings of the convention were to be reported to congress and 
the several legislatures, and were to become obligatory, 
only when ' agreed to in congress and confirmed by the 
states.' This is precisely the course of proceeding pre- 
scribed in the articles of confederation. Accordingly, the 
new constitution was submitted to congress ; was by them 
approved and agreed to, and was afterwards, in pursuance 
of the recommendation of the convention, laid before con- 
ventions of the several states, and by them ratified and 
adopted. In this proceeding, each state acted for itself, 
without reference to any other state. They ratified at dif- 
ferent periods ; some of them unconditionally, and others 
with provisoes and propositions for amendment. This was 
certainly state action, in as distinct a form as can well be 
imagined. Indeed, it may well be doubted whether any 
other form of ratification, than by the states themselves, 
would have been valid. At all events, none other was con- 
templated, since the constitution itself provides, that it 
shall become obligatory, when ratified by ' nine states,' be- 
tween the states ratifying the same. ' The people of the 
United States,' as an aggregate mass, are no where appeal- 
ed to, for authority and sanction to that instrument. Even 
if they could have made it their constitution, by adopting 
it, they could not, being as they were separate and distinct 
political communities, have united themselves into one 
mass for that purpose, without previously overthrowing 
their own municipal governments; and, even then, the new 
constitution would have been obligatory only on those who 
agreed to and adopted it, and not on the rest. 

" The distinction between the people of the several states 
and the people of the United States, as it is to be under- 
stood in reference to the present subject, is perfectly plain. 
I have already explained the terms, ' a people,' when used 
in a political sense. The distinction of which I speak may 
be illustrated by a single example. If the constitution had 



CONSTITUTIONAL LAW. 175 

been made by ' the people of the United States,' a certain 
portion of those people would have had authority to adopt 
it. In the absence of all express provision to the contrary, 
we may concede that a majority would, prima facie, have 
had that right. Did that majority, in fact, adopt it? Was 
it ever ascertained whether a majority of the vAole people 
were in favour of it or not? Was there any provision, 
either of law or constitution, by which it was possible to 
ascertain that fact? It is perfectly well known that there 
was no such provision ; that no such majority was ever as- 
certained, or even contemplated. Let us suppose that the 
people of the states of Massachusetts, New York, Penn- 
sylvania and Virginia, containing, as we have seen they 
probably did, a majority of the whole people, had been 
unanimous against the constitution, and that a bare majo- 
rity of the people in each of the other nine states, acting 
in their separate character as states, had adopted and rati- 
fied it. There can be no doubt, that it would have become 
the constitution of the United States ; and that, too, by the 
suffrages of a decided minority, probably not exceeding 
one fourth of the aggregate people of all the states. This 
single example shews, conclusively, that the people of the 
United States, as contradistinguished from the people of 
the several states, had nothing to do, and could not have 
had any thing to do with the matter. 

" This brief history of the formation and adoption of 
the constitution, which is familiar to the mind of every 
one who has attended to the subject at all, ought, as it 
seems to me, to be perfectly satisfactory and conclusive ; 
and should silence forever, all those arguments in favour of 
consolidation, which are founded on the preamHle to that 
instrument. I do not perceive with what propriety it can 
be said, that the ' people of the United States,' formed the 
constitution, since they neither appointed the convention, 
nor ratified their act, nor otherwise adopted it as obligato- 
ry upon them. Even if the preamble be entitled to all the 
influence which has been allowed to it, our author's con- 
struction of its language is not, as has already been re- 
marked, the only one of which it is susceptible. ' We, the 
people of the United States,' may, without any violence to 
the rules of fair construction, mean ' we, the people of the 
states united.' In this acceptation, its terms conform to 



176 LECTURES ON 

the history of the preamble itself, to that of the whole con- 
stitution, and those who made it. In any other accepta- 
tion, they are either without meaning, or else they affirm 
what history proves to be false. 

" It would not, perhaps, have been deemed necessary to 
bestow quite so much attention on this part of the work, if 
it were not evident that the author himself considered it 
of great consequence, not as matter of history, but as war- 
ranting and controlling his construction of the constitu- 
tion, in some of its most important provisions. The ar- 
gument is not yet exhausted, and I am aware that much of 
what I have said is trite, and that little, perhaps no part of 
it, is new. Indeed, the subject has been so often and so 
ably discussed, particularly in parliamentary debates, that 
it admits very few new views, and still fewer new argu- 
ments in support of old views. It is still, however, an 
open question, and there is nothing in the present condi- 
tion of public opinion, to deprive it of any portion of its 
original importance. The idea that the people of these 
states were, while colonists, and, consequently, are now, 
' one people,' in some sense which has never been explain- 
ed, and to some extent which has never been defined, is 
constantly inculcated by those who are anxious to consoli- 
date all the powers of the states in the federal government. 
It is remarkable, however, that scarcely one systematic ar- 
gument, and very few attempts of any sort, have yet been 
made io prove this important position. Even the vast and 
clear mind of the late chief justice of the United States, 
which never failed to disembarrass and elucidate the most 
obscure and intricate subject, appears to have shrunk from 
this. In all his judicial opinions in which the question has 
been presented, the unity or identity of the people of the 
United States has been taken as a postulatum, without one 
serious attempt to prove it. The continued repetition of 
this idea, and the boldness with which it is advanced, have, 
I am induced to think, given it an undue credit with the 
public. Few men, far too few, enquire narrowly into the 
subject, and even those who do, are not in general scepti- 
cal enough to doubt what is so often and so peremptorily 
asserted ; and asserted, too, with that sort of hardy confi- 
dence which seems to say, that all argument to prove it 
true would be supererogatory and useless. It is not, there- 



CONSTITUTIONAL LAW. 177 

fore, out of place, nor out of time, to refresh the memory 
of the reader, in regard to those well established histori- 
cal facts, which are sufficient in themselves, to prove that 
the foundation on which the consolidationists build their 
theory is unsubstantial and fallacious. 

" I would not be understood as contending, in what I 
have already said, that the constitution is necessarily fede- 
rative, merely because it was made by the states as such, 
and not by the aggregate people of the United States. I 
readily admit, that although the previous system was strict- 
ly federative, and could not have been changed except by 
the states who made it, yet there was nothing to prevent 
the states from surrendering, in the provisions of the new 
system which they adopted, all their power, and even their 
separate existence, if they chose to do so. The true en- 
quiry is, therefore, whether they have in fact done so, or 
not ; or, in other words, what is the true character, in this 
respect, of the present constitution. In this enquiry the 
history of their previous condition, and of the constitution 
itself, is highly influential and important." 

" It is worthy of remark, that of the states. New Hamp- 
shire and the author's own state of Massachusetts, express- 
ly call the constitution a compact, in their acts of ratifica- 
tion ; and no other state indicates a different view of it. 
This tends to prove that public opinion at the time had not 
drawn the nice distinction which is now insisted on, be- 
tween a government and a compact; and that those who 
for eight years had been living under a compact, and form- 
ing treaties with foreign powers by virtue of its provisions, 
had never for a moment imagined that it was not a govern- 
ment. 

" But little importance, however, ought to be attached to 
reasoning of this kind. Those who contend that our con- 
stitution is a compact, very properly place their principles 
upon much higher ground. They say that the constitution 
is a compact, because it was made by sovereign states, and 
because that is the only mode in ivhich sovereign states treat 
with one another. The conclusion follows irresistibly from 
the premises ; and those who would deny the one, are bound 
to disprove the other. Our adversaries begin to reason at 
the very point at which reasoning becomes no longer ne- 
cessary. Instead of disproving our premises, they assume 



178 LECTURES ON 

that they are wrong, and then triumphantly deny our con- 
clusion also. If we establish that the constitution was 
made by the states, and that they were, at the time, dis- 
tinct, independent and perfect sovereignties, it follows that 
they could not treat with one another, even with a vieio to 
the formation of a new common government, except in 
their several and sovereign characters. They must have 
maintained the same character, when they entered upon 
that work, and throughout the whole progress of it. What- 
ever the government may be, therefore, in its essential cha- 
racter, whether a federative or a consolidative government, 
it is still a compact, or the result of a compact, because 
those who made it could not make it in any other way. In 
determining its essential character, therefore, we are bound 
to regard it as a compact, and to give it such a construc- 
tion as is consistent with that idea. We are not to pre- 
sume that the parties to it designed to change the charac- 
ter in which they negotiated with one another. Every fair 
and legitimate inference is otherwise. Its sovereignty is 
the very last thing which a nation is willing to surrender ; 
and nothing short of the clearest proof can warrant us in 
concluding that it has surrendered it. In all cases, there- 
fore, where the language and spirit of the constitution are 
doubtful, and even where their most natural construction 
would be in favour of consolidation, (if there be any such 
case,) we should still incline against it, and in favour of the 
rights of the states, unless no other construction can be 
admitted. 

"Having disposed of this preliminary question, we now 
approach the constitution itself I affirm that it is, in its 
structure, a federative and not a consolidated government ; 
that it is so, in all its departments, and in all its leading 
and distinguishing provisions; and, of course, that it is to 
be so interpreted, by the force of its own terms, apart from 
any influence to be derived from that rule of construction 
which has just been laid down. We will first examine it 
in the structure of its several departments. 

" The Legislature. — This consists of two houses. The 
late is composed of two members from each state, cho- 
sen" by its own legislature, whatever be its size or popula- 
tion, and is universally admitted to be strictly federative in 
its structure. The house of representatives consists of 



CONSTITUTIONAL LAW. 179 

members chosen in each state, and is regulated in its num- 
bers, according to a prescribed ratio of representation. 
The number to which each state is entitled is proportioned 
to its own population, and not to the population of" the Uni- 
ted States ; and if there happen to be a surplus in any state 
less than the established ratio, that surplus is not added to 
the surplus or population of any other state, in order to 
make up the requisite number for a representative, but is 
wholly unrepresented. In the choice of representatives, 
each state votes by itself, and for its own representatives, 
and not in connexion with any other state, nor for the re- 
presentatives of any other state. Each state prescribes 
the qualifications of its own voters, the constitution only 
providing that they shall have the qualifications which such 
state may have prescribed for the voters for the most nume- 
rous branch of its own legislature. And, as the right to 
vote is prescribed by the state, the duty of doing so cannot 
be enforced, except by the authority of the state. No one 
can be elected to represent any state, except a citizen there- 
of Vacancies in the representation of any state, are to be 
supplied under writs of election, issued by the executive of 
such state. In all this, there is not one feature of nation- 
ality. The whole arrangement has reference to the states 
as such, and is carried into effect solely by their authority. 
The federal government has no agency in the choice of re- 
presentatives, except only that it may prescribe the ' times, 
places and manner, of holding elections.' It can neither 
prescribe the qualifications of the electors, nor impose any 
penalty upon them, for refusing to elect. The states alone 
can do these things ; and, of course, the very existence of 
the house of representatives depends, as much as does that 
of the senate, upon the action of the states. A state may 
withdraw its representation altogether, and congress has no 
power to prevent it, nor to supply the vacancy thus created. 
If the house of representatives were national, in any prac- 
tical sense of the term, the 'nation' would have authority 
to provide for the appointment of its members, to prescribe 
the qualifications of voters, and to enforce the performance 
of that duty. All these things the state legislatures can do, 
within their respective states, and it is obvious that they 
are strictly national. In order to make the house of re- 
presentatives equally so, the people of the United States 



180 LECTURES ON 

must be so consolidated that the federal government may 
distribute them, without regard to state boundaries, into 
numbers according to the prescribed ratio ; so that all the 
people may be represented, and no unrepresented surplus 
be left in any state. If these things could be done under 
the federal constitution, there would then be a strict ana- 
logy between the popular branches of the federal and state 
legislatures, and the former might, with propriety, be con- 
sidered ' national.' But it is difficult to imagine a national 
legislature which does not exist under the authority of the 
nation, and over the very appointment of which the nation, 
as such, can exert no eifective control. 

" There are only two reasons which I have ever heard 
assigned for the opinion that the house of representatives is 
national, and not federative. The first is, that its measures 
are carried by the votes of a majority of the ivhole number, 
and not by those of a majority of the states. It would be 
easy to demonstrate that this fact does not warrant such a 
conclusion ; but all reasoning is unnecessary, since the con- 
clusion is disproved by the example of the other branch of 
the federal legislature. The senate, which is strictly fede- 
rative, votes in the same way. The argument, therefore, 
proves nothing, because it proves too much. 

" The second argument is, that the states are not equally 
represented, but each one has a representation proportion- 
ed to its population. There is no reason, apparent to me, 
why a league may not be formed among independent sove- 
reignties, giving to each an influence in the management 
of their common concerns, proportioned to its strength, 
its wealth, or the interest which it has at stake. This is 
but simple justice, and the rule ought to prevail in all cases, 
except where higher considerations disallow it. History 
abounds with examples of such confederations, one of which 
I will cite. The states general of the United Provinces 
were strictly a federal body. The council of state had al- 
most exclusively the management and control of all their 
military and financial concerns; and in that body, Holland 
and some other provinces had three votes each, whilst some 
had two, and others only one vote each. Yet it never was 
supposed that for this reason the United Provinces were a 
consolidated nation. A single example of this sort affords 
a full illustration of the subject, and renders all farther ar- 
gument superfluous. 



CONSTITUTIONAL LAW. 181 

" It is not, however, from the apportionment of its 
powers, nor from the modes in which those powers are ex- 
ercised, that we can determine the true character of a le- 
gislative body, in the particular now under consideration. 
The true rule of decision is found in the manner in which 
the body is constituted, and that we have already seen, is, 
in the case before us, federative, and not national. 

" We may safely admit, however, that the house of re- 
presentatives is not federative, and yet contend, with per- 
fect security, that the legislative department is so. Con- 
gress consists of the house of representatives and senate. 
Neither is a complete legislature, in itself, and neither can 
pass any law without the concurrence of the other. And, 
as the senate is the peculiar representative of the states, no 
act of legislation whatever can be performed, without the 
consent of the states. They hold, therefore, a complete 
check and control over the powers of the people in this re- 
spect, even admitting that those powers are truly and 
strictly represented in the other branch. It is true that the 
check is mutual ; but if the legislative department were 
national, there would be no federative feature in it. It 
cannot be replied, with equal propriety, that, if it were fe- 
derative, there would be no national feature in it. The 
question is, whether or not the states have preserved their 
distinct sovereign characters, in this feature of the consti- 
tution. If they have done so, in any part of it, the whole 
must be considered federative; because national legislation 
implies a unity, which is absolutely inconsistent with all 
idea of a confederation ; whereas, there is nothing to pre- 
vent the members of a confederation from exerting their 
several powers, in any form of joint action which may 
seem to them proper. 

" But there is one other provision of the constitution 
which appears to me to be altogether decisive upon this 
point. Each state, whatever be its population, is entitled 
to at least one representative. It may so happen that the 
unrepresented surplus, in some one state, may be greater 
than the whole population of some other state; and yet 
such latter state would be entitled to a representative. Upon 
what principle is this ? Surely, if the house of representa- 
tives were national, something like equality would be 
found in the constitution of it. Large surpluses would not 
16 



182 LECTURES ON 

be arbitrarily rejected in some places, and smaller num- 
bers, not equal to the general ratio, be represented in 
others. There can be but one reason for this : As the 
constitution was made by the states, the true principles of 
the confederation could not be preserved, without giving to 
each party to the compact a place and influence in each 
branch of the common legislature. This was due to their 
perfect equality as sovereign states. 

" The Executive. — In the election of the president and 
vice president, the exclusive agency of the states, as such, 
is preserved with equal distinctness. These officers are 
chosen by electors, who are themselves chosen by the peo- 
ple of each state, acting by and for itself, and in such mode 
as itself may prescribe. The number of electors to which 
each state is entitled is equal to the whole number of its 
representatives and senators. This provision is even more 
federative than that which apportions representation in the 
house of representatives; because it adds two to the elec- 
tors of each state, and, so far, places them upon an equa- 
lity, whatever be their comparative population. The peo- 
ple of each state vote within the state, and not elsewhere ; 
and for their own electors, and for no others. Each state 
prescribes the qualifications of its own electors, and can 
alone compel them to vote. The electors, when chosen, 
give their votes within their respective states, and at such 
times and places as the states may respectively prescribe. 

" There is not the least trace of national agency, in any 
part of this proceeding. The federal government can ex- 
ercise no rightful power in the choice of its own executive. 
' The people of the United States' are equally unseen in 
that important measure. Neither a majority, nor the whole 
of them together, can choose a president, except in their 
character of citizens of the several states. Nay, a presi- 
dent may be constitutionally elected, loith a decided majo- 
rity of the people against him. For example, New York 
has forty-two votes, Pennsylvania thirty, Virginia twenty- 
three, Ohio twenty-one, North Carolina fifteen, Kentucky 
fourteen, and South Carolina fifteen. These seven states 
can give a majority of all the votes, and each may elect its 
own electors by a majority of only one vote. If we add 
their minorities to the votes of the other states, (supposing 
those states to be unanimous against the candidate,) we 



CONSTITUTIONAL LAW. 183 

may have a president constitutionally elected, with less 
than half — perhaps with little more than a fourth — of the 
people in his favour. It is true that he may also be con- 
stitutionally elected, with a majority of the states, as such, 
against him, as the above example shews ; because the 
states may, as before remarked, properly agree, by the pro- 
visions of their compact, that they shall possess influence, 
in this respect, proportioned to their population. But there 
is no mode, consistent with the true principles of free, re- 
presentative government, by which a minority of those to 
whom, en masse, the elective franchise is confided, can 
countervail the concurrent and opposing action of the ma- 
jority. If the president could be chosen by the people of 
' the United States' in the aggregate, instead of by the 
states, it is difficult to imagine a case in which a majority 
of those people, concurring in the same vote, could be 
overbalanced by a minority. 

" All doubt upon this point however, is removed by 
another provision of the constitution touching this sub- 
ject. If no candidate should receive a majority of votes 
in the electoral colleges, the house of representatives elects 
the president, from the three candidates who have received 
the largest electoral vote. In doing this two thirds of the 
states must be present by their representatives, or one of 
them, and then they vote hy states, all the memhers from 
each state giving one vote, and a majority of all the states 
being necessary to a choice. This is precisely the rule 
which prevailed in the ordinary legislation of that body, 
under the articles of confederation, and which proved its 
federative character, as strongly as any other provision of 
those articles. Why, then, should this federative princi- 
ple be preserved, in the election of the president by the 
house of representatives, if it was designed to abandon it, 
in the election of the same officer by the electoral colleges? 
No good reason for it has yet been assigned, so far as I am 
informed. On the contrary, there is every just reason to 
suppose, that those who considered the principle safe and 
necessary in one form of election, would adhere to it as 
equally safe and necessary in every other, with respect to 
the same public trust. And this is still farther proved by 
the provision of the constitution relating to the election of 
the vice president. In case of the death or constitutional 



184 LECTURES ON 

disability of the president, every executive trust devolves 
on him ; and, of course, the same general principle should 
be applied, in the election of both of them. This is done 
in express terms, so far as the action of the electoral col- 
leges is contemplated. But if those colleges should fail to 
elect a vice president, that trust devolves on the senate, 
who are to choose from the two highest candidates. Here 
the federative principle is distinctly seen ; for the senate is 
the representative of the states. 

" This view of the subject is still farther confirmed by 
the clause of the constitution relating to impeachments. 
The power to try the president is vested in the senate 
alone, that is, in the representatives of the states. There 
is a strict fitness and propriety in this ; for those only, 
whose officer the president is, should be entrusted with the 
power to remove him. 

" It is believed to be neither a forced nor an unreason- 
able conclusion from all this, that the executive depart- 
ment is, in its structure, strictly federative. 

" The Judiciary. — The judges are nominated by the pre- 
sident, and approved by the senate. Thus the nominations 
are made by a federative officer, and the approval and con- 
firmation of them depend on those who are the exclusive 
representatives of the states. This agency is manifestly 
federative, and ' the people of the United States' cannot 
mingle in it, in any form whatever. 

''As the constitution is federative in the structure of all 
three of its great departments, it is equally so in the power 
of amendment. 

" Congress may propose amendments, ' whenever two 
thirds of both houses shall deem it necessary.' This se- 
cures the states against any action upon the subject, by the 
people at large. In like manner, congress may call a con- 
vention for proposing amendments, ' on the application of 
the legislatures of two thirds of the several states.' It is 
remarkable that, whether congress or the states act up- 
on the subject, the same proportion is required ; not less 
than two thirds of either being authorized to act. From 
this it is not unreasonable to conclude, that the convention 
considered that the same "power would act in both cases ; 
to wit, the power of the states, who might effect their ob- 
ject either by their separate action as states, or by the ac- 



CONSTITUTIONAL LAW. 185 

tion of congress, their common federative agent; but, 
whether they adopted the one mode or the other, not less 
than two thirds of them should be authorized to act effi- 
ciently. 

" The amendments thus proposed ' shall be valid to all 
intents and purposes, as part of this constitution, lolienra- 
tified by the legislatures of three fourths of the several 
states, or hy conventions in three fourths thereof, as the one 
or the other mode of ratification may be proposed by con- 
gress.' It is the act of adoption or ratification alone which 
makes a constitution. In the case before us, the states 
alone can perform that act. The language of the consti- 
tution admits of no doubt, and gives no pretext for double 
construction. It is not the people of the United States 
in the aggregate, merely acting in their several states, who 
can ratify amendments. Three fourths of the several states 
can alone do this. The idea of separate and independent 
political corporations could not be more distinctly convey- 
ed, by any form of words. If the people of the United 
States, as one people, but acting in their several states, 
could ratify amendments, then the very language of the 
constitution requires that three fourths of them shall con- 
cur therein. Is it not, then, truly wonderful, that no mode 
has yet been prescribed to ascertain whether three fourths 
of them do concur or not? By what power can the neces- 
sary arrangement upon this point be effected? In point of 
fact, amendments have already been made, in strict con- 
formity with this provision of the constitution. We ask 
our author, whether three fourths of the people of the 
United States concurred in those amendments or not; and 
if they did, whence does he derive the proof of it ? 

" If our author, and the politicians of his school, be cor- 
rect in the idea, that the constitution was formed by ' the 
people of the United States,' and not by the states, as such, 
this clause relating to amendments presents a singular ano- 
maly in politics. Their idea is, that the state sovereignties 
were merged, to a certain extent, in that act, and that the 
government established was emphatically the government 
of the people of the United States. And yet, those same 
people can neither alter nor amend that government ! In 
order to perform this essential function, it is necessary to 
call again into life and action those very state sovereign- 
16* 



186 LECTURES ON 

ties which were supposed to be merged and dead, by the 
very act of creating the instrument which they are re- 
quired to amend ! To alter or amend a government re- 
quires the same extent of power which is required to form 
one ; for every alteration or amendment is, as to so much, 
a new government. And, of all political acts, the forma- 
tion of a constitution of government is that which admits 
and implies, the most distinctly and to the fullest extent, 
the existence of absolute, unqualified, unconditional and 
unlimited sovereignty. So long, therefore, as the power of 
amending the constitution rests exclusively with the states, 
it is idle to contend that they are less sovereign now than 
they were before the adoption of that instrument. 

" The idea which I am endeavouring to enforce, of the 
federative character of the constitution, is still farther con- 
firmed by that clause of the article under consideration, 
which provides that no amendment shall be made to de- 
prive any state of its equal suffrage in the senate, without 
its own consent. So strongly were the states attached to 
that perfect equality which their perfect sovereignty impli- 
ed, and so jealous were they of every attack upon it, that 
they guarded it, by an express provision of the constitu- 
tion, against the possibility of overthrow. All other rights 
they confided to that power of amendment which they re- 
posed in three fourths of all the states ; but this they re- 
fused to entrust, except to the separate, independent and 
sovereign will of each state ; giving to each, in its own 
case, an absolute negative upon all the rest.(2) 

"The object of the preceding pages has been to shew 
that the constitution is federative, in the power which fram- 
ed it ; federative in the power which adopted and ratified 
it ; federative in the power which sustains and keeps it 
alive ; federative in the power by which alone it can be 
altered or amended ; and federative in the structure of 
all its departments. In what respect, then, can it justly be 

(i) So absolutely is the federal government dependent on the 
states for its existence at all times, that it may be absolutely dis- 
solved, without the least violence, by the simple refusal of a part 
of the states to act. If, for example, a few states, ha^*ing a majo- 
rity of electoral votes, should refuse to appoint electors of presi- 
dent and vice-president, there would be no constitutional execu- 
tive, and the whole machinery of the government would stop. 



CONSTITUTIONAL LAW. 187 

called a consolidated or national government? Certainly 
the mere fact that, in particular cases, it is authorized to 
act directly on the people, does not disprove its federative 
character, since that very sovereignty in the states, which 
a confederation implies, includes within it the right of the 
state to subject its own citizens to the action of the com- 
mon authority of the confederated states, in any form which 
may seem proper to itself Neither is our constitution to 
be deemed the less federative, because it was the object of 
those who formed it to establish ' a government,' and one 
effective for all the legitimate purposes of government. 
Much emphasis has been laid upon this word, and it has 
even been thought, by one distinguished statesman of judge 
Story's school, that ours is ' a government proper,^ which 
I presume implies that it is a government in a peculiarly 
emphatic sense. I confess that I do not very clearly dis- 
cern the diiference between a government and a govern- 
ment proper. Nothing is a government which is not pro- 
perly so, and whatever is properly a government, is a go- 
vernment proper. But whether ours is a ' government pro- 
per,' or only a simple government, does not prove that it is 
not a confederation, unless it be true that a confederation 
cannot be a government. For myself, I am unable to dis- 
cover why states, absolutely sovereign, may not create for 
themselves, by compact, a common government, with 
powers as extensive and supreme as any sovereign people 
can confer on a government established by themselves. In 
what other particular ours is a consolidated or national 
government, I leave it to the advocates of that doctrine to 
shew." 



LECTURES ON CONSTITUTIONAL LAW. 189 



LECTURE VII. 

Having thus established, I trust, beyond all reasonable 
doubt, that the constitution of the United States is the 
creature of the sovereign states, that it vs^as agreed to by 
them in that character, and that it is of consequence a 
compact between them, whereby they have ordained and 
established a form of government for the management of 
their affairs, we are brought next to the natural enquiry, 
" What are the consequences of those principles, and in 
what respect do the two great parties of the nation differ 
in relation to those consequences?" 

That portion of the statesmen and politicians in our 
country who deny that the constitution was established by 
the states themselves, in their sovereign character, and in- 
sist that it was ordained and " established by the people of 
the United States in the aggregate, as one people,"(fl!) 
very consistenly, perhaps, deny, that there is any power in 
the states to call in question the constitutionality of laws 
made by the general government.(6) Such were the opi- 
nions of Massachusetts and five other states in the year 
1799, and such seem distinctly to be the views of the com- 
mentator on the constitution. On the other hand, it is 
contended by those who look upon the states as parties to 
the constitution, that that character, upon ordinarily re- 
ceived principles, invests them with a right to judge of its 
infractions, and of the nature, extent and obligations of 
the instrument. (c) These views are very fully presented, 

(a) Webstei''s speech, cited and approved 1 Story 332. 

(b) Resolutions of Delaware, Rhode Island, Massachusetts, New 
York, New Hampshire and Vermont. 

(c) The difference must always be borne in mind between the 
mere declaration or manifesto of a state denouncing an infraction 
of the constitution, and calling the attention of its own people, 
and of the other members of the confederacy to its violation, and 
the act of resistance or nullification of a law regularly passed by 
the constituted authorities. The former is without objection, as it 
is the exercise of the ordinary right of canvassing and arraigning 
the acts of the servants of the people. The latter is without jus- 



190 LECTURES ON 

not only in the extracts made by judge Story from the 
work of judge Tucker, but also in the able report of Mr. 
Madison in 1799, which forms a part of the manual of the 
student. 

It is certainly not altogether clear, even upon the prin- 
ciples of those who look upon the constitution as the act 
of the people, in their collective capacity as one people, 
that the states constituting organized bodies, to whom all 
rights not granted are reserved, except what may be re- 
served to the people, have no right to look into the acts of 
the general government, to canvass them freely, and to en- 
quire whether they have passed those limits, which the 
people, the common masters of both governments, have 
laid down between them. Considering the legislatures as 
representing the residuary sovereignty of the states, one 
might imagine that as servants and trusted agents of the 
people, it was their duty to sound the alarm when their 
rights were transcended. If the right of the people peace- 
ably to assemble in irregular assemblies, and to petition 
the government for redress of grievances, was worthy of 
being secured, it would seem a fortiori that their legisla- 
tures representing their will and their sovereignty should 
be untrammelled in the free expression of their opinions 
as to the constitutionality of the measures pursued by the 
general government. To what extent they may go will be 
presently considered. But there seems to be no good rea- 
son to deny, as was done by the eastern states already re- 
ferred to, that the legislatures " have the right," or "are 
competent," or " are proper tribunals to decide on the con- 
stitutionality of," or "to supervise the acts of the general 
government." Nor did some of the states in question he- 
sitate for a moment, at a subsequent period, to exercise the 
right, which at a former period they had questioned. For 
the embargo and the declaration of war, certainly called 
forth from some of them, not only a free examination of the 
measures themselves, but the most angry denunciations also 
of the course of the general government. The true point of 

tification, and partakes of a revolutionary cliaracter : for there is 
no constitutional provision for such a proceeding, and whatever is 
out of, or subversive of, the subsisting and established order of 
things, is revolutionary in its tendencies and effects. 



CONSTITUTIONAL LAW. 191 

difference, therefore, probably is, not as to the existence of 
the right to interfere, but as to the extent of interference 
only. On this point, it is believed, that the opinions of 
those, belonging to what is familiarly called the states rights 
party, were at one time seriously divided ; though there 
may be reason to hope that the advocates of some of the 
extravagant positions attributed by judge Story to all the 
party, are no longer urgeut in pressing these questionable 
pretensions. The learned commentator thus states " the 
deductions, which, he says, may be, and indeed have been 
drawn, from considering the constitution as a compact be- 
tween the states." — " They are, that it operates as a mere 
treaty or convention between them, and has an obligatory 
force upon each no longer than it suits its pleasure, or its 
consent continues ; that each state has a right to judge for 
itself in relation to the nature, extent and obligations of 
the instrument, without being at all bound by the interpre- 
tation of the federal government, or by that of any other 
state : and that each retains the power to withdraw from 
the confederacy and to dissolve the connexion lohen such 
shall he its choice ; and mciij suspend the operations of 
the federal government and nullify its acts within its 
own territorial limits, whenever, in its oivn opinion, the 
exigency of the case may require." The part in italics 
embraces the much talked of doctrines of secession and 
millification, which must not be passed without remark. 

The doctrine of nullification, which is thus presented as 
flowing naturally from the position, that the constitution is 
a compact between the states, is not fairly to be attributed 
to the report and resolutions of the state of Virginia. 
They only declare "that in case of a deliberate, palpable 
and dangerous exercise of powers not granted by the com- 
pact, the states, who are parties thereto, have the right, 
and are in duty bound, to interpose for arresting the pro- 
gress of the evil, and for maintaining within their respec- 
tive limits, the authorities, rights and liberties appertaining 
to thera."(rf) 

When the resolutions of 1798, of which this was a part, 
were introduced by John Taylor of Caroline, it was de- 

(d) Taylor's resolutions of 1798. The report of 1799 reviews 
and sustains them. 



192 LECTURES ON 

clared by one of them, that the alien and sedition laws 
were " unconstitutional and not Imv, hut utterly null, 
void, and of no force or effect :" but these words were 
stricken out upon motion, without opposition ; the general 
assembly thus not only disavowing every attempt to nul- 
lify, but even disclaiming the declaration that the law was 
a nullity. This was indeed going farther than was neces- 
sary, since their resolution had not the effect of a law, and 
could not even in their own courts, have had any influ- 
ence or force ; and they certainly had the right as men, as 
citizens, and as a legislative body, to express their mere 
opinion of the unconstitutionality and consequent invali- 
dity of the obnoxious laws. 

Virginia, then, has never by her public acts avowed the 
do cti'ine of nullification ; which is understood to mean "the 
right of a state to continue to be a member of the Union, 
to receive its benefits, to exercise its authority, to unite 
in its legislation by its senators and representatives, and 
in the election of the president by the votes of its people, 
and at the same time to pass laws arresting the execution 
of laws of congress, and nullifying those laws throughout 
its limits by its own legislation or authority." Such a pre- 
tension has, I think, been very justly deemed, by a large 
portion of our statesmen and politicians, inconsistent, mis- 
chievous and inadmissible ; leading inevitably to inequa- 
lity, disorder and civil war, or to a severance of the Union, 
with its innumerable attendant evils. That it is inconsis- 
tent is apparent in this; that the opposing state may stand 
alone in its opinions, and while it resists the unanimous 
sentiment of all the rest, claims and receives the benefits 
of the Union. It may thus be said to claim to be in and 
out of the Union at the same time. It is moreover mis- 
chievous and unequal because it arrogates to a single state 
the right to throw from its shoulders, a burden which it 
thinks, or affects to think, unconstitutional, while it falls 
on twenty-five other acquiescing states ; and thus renders 
unequal those contributions for the common defence and 
general welfare, which justice and the constitution require 
to be uniform. Thus, if a direct tax of ten millions were 
laid, and one state, whose quota was half a million, should 
nullify the law, while others complied with it as just and 
lawful, the effect would be, that it would enjoy all the be- 



CONSTITUTIONAL LAW. 193 

nefits of the government without the payment of a cent, 
and the taxes must be increased on others to supply its de- 
ficit. Could other states be expected patiently to submit 
to such an inequality 1 Is it not obvious that collision be- 
tween the general government and the state would be un- 
avoidable, and that the only result must be compulsion, or 
expulsion from the Union ? How long could a state ex- 
pect her senators or representatives to be admitted to seats 
upon the floor of congress, while her legislature at home 
was engaged in hostile acts in contempt of the unanimous 
opinion of her sister states ? Or how could she expect her 
five and twenty confederates to surrender their concurrent 
views to the harsh negative of her discordant voice ? Or 
how could she look to an exemption from the exertion of 
that power which is vested in the general government, to 
" call forth the militia to execute the laws of the Union," 
backed by regular forces, raised under the express provi- 
sions of the constitution ? Or if the strong sentiment of 
brotherly love, which the bond of fifty years standing has 
rendered, I trust, all-powerful, should prompt to milder 
measures, what less could be said to the discontented and 
rebellious member, than as Abram said unto Lot, "Do 
thou take to the right hand, and I will take to the left, so 
that there may be no dispute between thine and mine. If 
you will not yield to the unanimous judgment of twenty- 
five against one, all of whom have equal right to decide 
with yourself, secede; withdraw from the Union, for which 
you are not fit, since you are unwilling to submit to the 
decision of a majority, however overwhelming." Thus it 
is clear, that the least evil resulting from nullification is 
disunion ; while the history of the world but too forcibly 
demonstrates how much more probable may be the remedy 
of the sword. 

But let us examine this question a little more closely. 
The pretensions of nullification are very distinctly stated 
by Mr. Madison, in his letter to Everett of August 1S30, 
in which he says; "this brings us to the expedient lately 
advanced, which claims for a single state a right of appeal, 
(against an exercise of power by the government of the 
tfnited States, decided by the state to be unconstitutional,) 
to the parties to the constitutional compact ; the decision 
of the state to have the effect of nullifying the act of the 
17 



194 LECTUKES ON 

government of the United States, unless the decision of 
the state be reversed by three fourths of the parties, [States.] 
If the doctrine were to be understood as requiring the 
three fourths to sustain, instead of that proportion to re- 
verse, the decision of the appealing state, the decision to be 
without effect during the appeal, it would be sufficient to 
remark, that this extra-constitutional course might well give 
way to that marked out by the constitution, which autho- 
rizes two thirds of the states to institute, and three fourths 
to effectuate, an amendment to the constitution, establishing 
a permanent rule of the highest authority, in place of an 
irregular precedent of construction only. But it is un- 
derstood, that the nullifying doctrine imports, that the de- 
cision of the state is to be presumed to be valid, and that 
it overrules the law of the United States, unless it be itself 
overruled by three fourths of the states," and suspends the 
law until the state decision be so overruled. 

Now the first question which here presents itself is in 
relation to this appeal of a single state to the parties to the 
constitution. Has the state legislature a right to make this 
appeal, or are their powers confined to the authorizing a 
convention who may make it? Again, can the legislatures 
of other states respond to this appeal, or must not they act 
also through the agency of conventions, who alone repre- 
sent the people of the respective states on these momen- 
tous occasions. It would seem clear from what has already 
been said in the course of these lectures, that though the 
constitution is a compact between the people of the re- 
spective states, as sovereign and independent, it was a 
compact entered into between them, not through the me- 
dium of the ordinary legislatures, whose powers embraced 
no authority to ordain and establish a federative govern- 
ment, but through the medium of conventions in the seve- 
ral states, representing their respective sovereignties in the 
great act of accepting, ratifying and establishing the con- 
stitution. The state legislatures were constituted by the 
state constitutions to exercise certain functions entrusted 
to them, but there is nothing in any of these instruments 
to authorize the legislatures to enter into a contract for the 
states for the establishment of another government, and 
giving to it sovereign powers, which they were no where 
authorized to give. Conventions, therefore, were properly 



CONSTITUTIONAL LAW. 195 

resorted to, and the people of the states became parties 
through conventions. The states then can only properly 
make or answer appeals through conventions. Accord- 
ingly a convention was in the sequel of her proceedings, 
called together by South Carolina, in her appeal to her 
sister states, when she was strenuously maintaining her 
doctrines of nullification. (e) With this preliminary re- 
mark let us now see what would be the consequences of 
this doctrine. 

In the first place, no effectual appeal can be made, ex- 
cept through the call of a convention, by the dissatisfied 
state, and thus the heavy burdens of an extra deliberate 
body must be incurred whenever the discontented are suf- 
ficiently numerous at home to succeed in such a measure. 

Secondly ; if this call is to be responded to, it can only 
be answered by the deliberation and decision of five and 
twenty other state conventions called together for that pur- 
pose : And as there are already six and twenty states, 
there must thus be, upon every factious or fretful appeal made 
by any one of the whole number, the heavy burden of six 
and twenty conventions throughout the Union, which, in 
addition to their expenses, would keep the public mind in 
a state of perpetual ferment and excitement. Yet upon 
the principles contended for, the uncomplaining states must 
acquiesce in appointing conventions, since " the law is to 
be suspended until the decision of the appealing state" has 
been reversed by three fourths of the parties ! 

Thirdly ; it must be observed that as there is no provi- 
sion in the constitution for any such proceeding, and as in 
each case there must be, to the people, a direct appeal, the 
whole must be above the constitution, not under it. It 
must be then, of course, subversive of the subsisting order 
of things : And what is this but revolution upon every 
petty cavil as to the character of a law enacted by the re- 
presentatives, both of the people and the states, sustained 
by the signature of the president, and stamped with vali- 
dity by the seal of the judiciary 1 

(e) Where powers are reserved to the states, and they are invaded 
by congress, the state, of course, will proceed to exercise its pow- 
ers in the ordinary mode, and in the event of collision, the judi- 
ciary (the umpire appointed to decide all cases arising under the 
constitution) must decide. 



196 LECTURES ON 

Fourthly; let us proceed a step farther. The appeal 
and responses, if proceeding from conventions, or even 
from legislative bodies, must be tardy and protracted, and 
the consequences of a suspension of vital lavi^s, until the 
decision is promulgated as to their supposed validity, must 
be dangerous and sometimes fatal. If an embargo is \a\d{f) 
on the eve of war, which Massachusetts thinks uncon- 
stitutional, the law must be suspended at her instance, and 
our ports thrown open, until three fourths of the states 
shall overrule her objections. If the requisitions of mili- 
tia service, Jlagi^anfe hello, are deemed unconstitution- 
al, (^) if a border state refuses to permit its militia to cross 
the Canada line to consummate a victory already half won, 
they must be halted till three fourths of the states shall 
silence their scruples. If direct taxes are laid(/i) to carry 
on a war for liberty and existence, the collection must be 
suspended till all the states are heard from. If a fort is to 
be erected, we may be compelled by one state to wait till 
all the rest shall respond to some technical and quibbling 
objection, and if the surrender of our runaway slaves, or 
of the negro stealers, who carry them off is evaded, against 
the plain words of the constitution, we must wait for re- 
dress until three fourths of the states shall decide that the 
act of our northern brethren is not justified by the com- 
pact. And when may that be expected? Ad GrcBcas 
Calendas ! Never ! Never, at least, if the spirit of abo- 
lition and fanaticism are not checked in their rapid and 
alarming growth. Until then we must wait for a declara- 
tion, by the states, that the recent laws of Pennsylvania 
and New York, on the subject of the trial of the master's 
rights before a jury, are unconstitutional and void ! For- 
tunately for the south, a shorter and a surer remedy was af- 
forded by the decision of the supreme court of the United 
States in the case of Prigg v. State of Pennsylvania, in 
which the laws for the protection of fugitive slaves, and 
giving to them a jury trial when demanded by their mas- 
ters, was declared unconstitutional and void. But what is 
to be the effect, (even upon this decision,) of the resistance 
of Pennsylvania, if the principles of nullification are 

(/) Case of embargo during late war. 
(o-) Case during last war. 
Qi) E. g. the carriage tax. 



CONSTITUTIONAL LAW, 197 

brought to bear upon it 1 It will be annulled and held for 
nought, until it be sustained by three fourths of the states. 

Nor can it escape observation that by the adoption of 
such a principle, those salutary and sacred provisions in 
the constitution, which were the result of compromise, may 
be put in jeopardy. The northern interest, it is well known, 
were greatly opposed to the principle, which, in the esti- 
mate of our slaves on the question of representation, treat- 
ed them in some degree as persons, whereby we gained 
many representatives in the south ; whereas in the assess- 
ment of taxes, they were not all looked upon as property, 
and we were thus saved no small portion of the burden of 
taxation. We have representatives for three fifths of the 
slaves, and in the estimate of taxes, two fifths are exclu- 
ded. (z) If this important provision had not been secured 
at the formation of the constitution of the United States, 
what prospect would there be of obtaining it now? And 
plain as it is, if on any pretext it could be resisted, resis- 
tance would amount to repeal, since the northern states 
never would assent to it as an independent provision in 
behalf of the southern states. 

There is, indeed, no point of view in which this gratui- 
tous notion of nullification — this notion, which finds no 
place in the constitution, and was never among the dreams 
of the most visionary in our conventions, — this notion, 
which is the mere figment of the brain of politicians teem- 
ing with new conceptions generated by the heat of party 
feuds, there is no point of view in which it can be consi- 
dered, in which its mischievous and incongruous operation 
is not most wofully conspicuous. Let us imagine to our- 
selves half a dozen dissatisfied states, each having its own 
peculiar grievance, appealing, with all the exacerbation of 
party feeling, against particular laws of the general govern- 
ment. Let us then fairly estimate the influence of such a 
combination of circumstances upon the peace, the happi- 
ness and fraternity of the Union. Let us, moreover, call 

(i) Considering them as property, they ought to have given us 
no additional representatives ; considering them as persons, they 
ought to have been estimated in the population in laying direct 
taxes. Yet three fifths are estimated in the representation, and two 
fifths are excluded in the apportionment of taxes. They are per- 
sons when it avails us, and property when it does not. 

17* 



198 



LECTURES ON 



to mind the time that must be required to carry out the dis- 
cussions, and to come to a conclusion in six and twenty 
states, spread over this extensive continent. Let us then, 
moreover, duly estimate the changing opinions of men, and 
still more of political bodies, in the short space of one re- 
volving year. A legislature in 1842, remonstrates and ap- 
peals against a law. Before a response to its appeal, a new 
election changes the political phase of the body, and what 
was before abhorred as unconstitutional, is now approved 
by acclamation. Such things have well nigh been. In 
1808, a Virginia house of delegates proposed an amend- 
ment to the constitution of the United States, providing for 
the removal of the judges upon the vote of the two houses 
of congress. Had the measure passed, Virginia in two years 
afterwards would have strained every nerve for its repeal. 
Before her sister states would all have passed upon it, she 
would have been the earnest opponent of her own proposi- 
tion. These considerations furnish the most abundant rea- 
sons against too hasty and ill considered amendments, and 
they are yet more weighty, when applied to maiming and 
crippling the constitution, by the innumerable wounds, and 
ingenious devices of modern nullification. 

Nor is the notion of a power in the state governments 
to nullify the laws of the Union, more mischievous than 
the application of the same principle to the decisions of 
the judiciary. We are told by the very able and ingeni- 
ous author of the review of judge Story's commentariesfA;) 
that " if in a controversy between the United States and a 
citizen, (/) the decision is against the citizen in the su- 
preme court of the United States, there is no relief for him 
in any other judicial proceeding." In this we must all 
concur. But he goes on to observe, that "his only relief 
is by an appeal to his oton state." a position as novel and 
alarming as it is believed to be in utter subversion of the 

(k) Pa. 87. 

(I) I do not understand judge Upshur's reasoning as being con- 
fined to a case between the United States and a citizen. It goes 
the full length of shewing that where the citizen is in any case 
aggrieved by the enforcement of a law " which the state did not 
consent that congress should pass," he may appeal to the state for 
its decision on the question. I shall therefore treat the matter 
without reference to the party bij whom the aggrieved citizen is 
sued. 



CONSTITUTIONAL LAW. 199 

very first principles of legitimate government. Let us pre- 
sent, however, the whole passage in justice to the author. 

" He" (the citizen) he continues, " is under no obliga- 
tion to submit to federal decisions at all, except so far only 
as his own state has commanded him to do so ; and he has, 
therefore, a perfect right to ask his state whether her com- 
mands extend to the particular case or not. He does not 
ask whether the federal court has interpreted the law cor- 
rectly or not, but whether or not she ever consented that 
congress should pass the law. If congress had such power, 
he has no relief, for the decision of the highest federal 
court is final ; if congress had not such power, then he is 
oppressed by the action of a usurped authority, and has a 
right to look to his own state for redress. His state may 
interpose in his favour or not, as she may think proper. If 
she does not, then there is an end of the matter ; if she 
does, then it is no longer a judicial question. The ques- 
tion is then between new parties, who are not bound by the 
former decision ; between a sovereign state and its own 
agent ; between a state and the United States. As between 
these parties the federal tribunals have no jurisdiction, 
there is no longer a common umpire to whom the contro- 
versy can be referred. The state must of necessity judge for 
itself, by virtue of that inherent, sovereign power and au- 
thority, which, as to this matter, it has never surrendered to 
any other tribunal. Its decision, whatever it may be, is bind- 
ing upon itself and upon its own people, and no farther." 

Again, in page 90, our author observes, "that ordina- 
rily, the judiciary are the proper interpreters of the pow- 
ers of government, hut they interpret in subordination to 
the power which created them." How are we to understand 
this remark? Is it that the judiciary of the United States 
irust conform their decisions to the rescripts of the state, 
and bow with submission to the constitutional interpreta- 
tion of a political body, pronouncing upon its own rights, 
swayed by its peculiar interests, and animated by its politi- 
cal prejudices and views of state policy. Had the learned 
judge, once himself a luminary of the bench, forgotten the 
object and the character of the judiciary, and what is mainly 
looked for in the character of a judge. Had he forgotten 
the terms of that oath, in which the state, addressing the 
judicial functionary, gives him this solemn injunction : 



200 LECTURES ON 

" You shall faithfully and impartially discharge your duty 
as a judge, by doing equal justice to all men, high and 
low, rich and poor, without fear, favour, affection or par- 
tiality. You shall deny justice to none, by reason of any 
letter of request or solicitation from any, but you shall, in 
all things, do right, according to law, according to the best 
of your skill, ability and judgment, so help you God." 
These are the commands of the sovereign people to this 
important servant. These are its only commands. Be- 
yond these, the judge is the servant of no man ; he is the 
slave of no man's will. His only guide is his conscience; 
his only light, the law and the intelligence it has pleased 
God to give him. The object of his creation is perfect in- 
dependence. He is the only officer who holds his place for 
life in this government of responsibility. He is the only 
officer who holds a salary by a certain tenure. It cannot be 
diminished during his continuance in office. He is the only 
officer, therefore, who is altogether independent, even of his 
masters, so long as he behaves himself honestly and faith- 
fully. They have made him so — they intended to make him 
so, and justly, too, for he who is to ascend the seat of justice 
and pronounce between the state and her subjects, ought to 
be placed in circumstances to defy her frowns. It is thus, 
only, that he can be the barrier between innocence and its 
persecutor. It is thus, only, that he can be elevated to the 
high character of being deaf as an adder and insensible 
as a stoic to the threats of a tyrant or the terrors of the 
crowd. 

Justum et tenarum ^c. 

The construction of the judicial branch of the govern- 
ment, both in England and America, is indeed one of the 
greatest discoveries of modern times. The judge is de- 
signed to be, as far as may be, an impossible being, an in- 
tellectual essence, elevated above the storms and conten- 
tions of political parties; unswayed by feeling, unmoved 
by passion, disenthralled from prejudice, uninfluenced by 
power, either of government or people ; a being without 
fear and without reproach ; dauntless and intrepid in the 
discharge of his duties, calm and elevated in their perfor- 
mance ; the follower of no man's opinions, but pursuing 
the unbiassed dictates of his own honest and upright judg- 



CONSTITUTIONAL LAW, 201 

ment, with the devotion of a worshipper at the throne of 
eternal justice. He feels his independence, and is con- 
scious that it was given to make him an impartial umpire 
in the controversies of stales, not less than in the petty 
squabbles of village warfare. Such a man would spurn the 
idea of holding his opinions in subordination to any one — 
even to a state. 

I cannot, therefore, think that more is here meant by 
the writer than the restoratrion of the notion, presented in 
a former page, of the right of the citizen to appeal to his 
state, to appeal from this permanent tribunal, placed as far 
as possible, above all the pernicious influences of preju- 
dice, interest and passion, to one which is but the child of 
a day, which owes its very creation wholly to the ferment 
of party, which is appointed but to serve its ends, and is 
the slave of its will, which lives but in its warmth, and 
whose brief existence expires when it has fulfilled the be- 
hests which called it into being. Heaven protect my rights 
from such a judiciary ! Such an one will the legislature 
or convention of Pennsylvania be, when it is called upon 
to decide in the case of Prigg v. The State. Yet its de- 
cision is to supersede the judgment of the supreme court, 
until that judgment shall be afiirmed by three fourths of 
the states; an event which 'tis obvious the spirit of aboli- 
tion never will permit. 

The whole error of the able and learned author, indeed, 
may be traced, I conceive, to the unfounded notion, that 
the constitution has appointed no common umpire to settle 
questions of constitutional power between the states and 
the United States, (page 87.) Such an umpire is appoint- 
ed in the establishment of the supreme court, with powers 
extending to " all cases arising under the constitution." 
Every judiciary is an umpire ! Every judiciary is invest- 
ed with power to pronounce upon the rights of the parties, 
not under the influence of party passions or political feel- 
ings, or even with a view to national interest, but according 
to the laws of the land and the immutable and eternal prin- 
ciples of justice. In relation to every question submitted 
to them by this constitution, and by the sovereignties who 
are parties to it, they are as clearly umpires as the king of 
Holland was in the recent controversy respecting the 
northern boundary. The umpire between sovereigns is 



202 LECTURES ON 

not necessarily a sovereign ; for the monarch may be a 
dolt, who finds it necessary to call in his ministers to his 
aid, who are then the real umpires. The umpire of states, 
by their own consent, may be the wise and good among 
their own people. Such are the commissioners very fre- 
quently appointed by states to adjust disputed points, and 
settle details, to which the sovereigns may of themselves 
be incompetent. And such are a wise and pure and inde- 
pendent judiciary, selected for their sagacity, distinguish- 
ed for their purity, and marked out by their matchless firm- 
ness and integrity. Such are the proper, the best umpires 
between confederated states ! Such are ours ! 

What, then, is their duty, and how far does their power 
extend? Their duty is to decide according to the right! 
According to the right as dictated by a sound and unbias- 
sed judgment ! Their power extends to the settlement of 
the controversy. Good faith demands obedience, even from 
those who created them, to the award of their referees. Is this 
a novel doctrine in our land? Is it the introduction of a 
principle hitherto unknown to our laws ? Far from it ! In 
some, perhaps in many of the states, the right of a citizen 
to sue the state before her own tribunals is admitted. In 
all, suits are prosecuted by the states against individuals, 
and in all, the state, as well as the individual, bows sub- 
missive to the award of the judges acting under their war- 
rant. So under the constitution. The states have appoint- 
ed these elevated dignitaries, and raised them as far as pos- 
sible, above fear and above temptation, for the purpose of 
ministering in the great temple of justice. They are bound 
then by their decisions; they have no power to gainsay 
their award ; there is no appeal from their authoritative 
judgments. This is confessedly so, where the states are 
parties on the record. The judicial power by the express 
compact of the confederate sovereigns, extends to all con- 
troversies between two or more states. Whatever the de- 
cision of the court, whether upon a constitutional question, 
or upon any other point, the losing party must acquiesce, 
for she cannot appeal to herself in her own case. She has 
then no appeal. No constitutional appeal being provided, 
the faith of the sovereign is plighted to obey. And if the 
state itself is absolutely bound, how happens it, that her 
people, whose cases are equally submitted to this tribunal, 



CONSTITUTIONAL LAW, 203 

can have a right of appeal 1 Such a pretension is pregnant 
with difficulties which, I cannot think, have presented 
themselves to the mind of the learned reviewer. 

In the first place, let us enquire to what tribunal is this 
appeal to be taken. We are told, indeed, he is to appeal 
to his state. But to what department of the state govern- 
ment is he to carry his complaints? Is it to be to a poli- 
tical, or to a judicial body? If it be a political body pro- 
nouncing upon the question as one of the parties to the 
compact, then, as we have elsewhere seen, the legislative 
body which did not represent the sovereignty in the forma- 
tion of the constitution, is not the proper authority, but a 
convention must be called to decide the great political ques- 
tion brought up by appeal for its decision. And thus, when- 
ever the party to any controversy in a federal court, can 
raise a question as to the exercise of jurisdiction, or the 
validity of a law of congress, and brings it before the le- 
gislature, they must call a convention to settle it. Verily 
this " medicine of the constitution would soon become our 
daily bread !" 

Another and another difficulty presents itself How is 
it that the question which is judicial in its character, is to 
be brought and decided before so ephemeral a tribunal as 
a convention of the state? How is it that what has been 
decided by the calm and sublimated tribunal erected by 
the states, is now to be re-examined before a political body 
under all the excitement so natural to their creation, with- 
out a hearing of the adversary party, without provision for 
superseding the judgment and enforcing its own decision, 
and without the means of getting the opinions of other 
states upon the political question in which all are equally 
interested ? It is clear enough that this bungling contri- 
vance is not under the constitution. If the constitution 
had contemplated an appeal from the supreme court to the 
state authorities, whether judicial, legislative, or conven- 
tional, it would have made the necessary provisions for 
conducting it. It would have prescribed the tribunal ; it 
would have provided for the parties being heard ; it would 
have prescribed the effect of the appellate decision, and the 
manner of enforcing it, and it would have contrived some 
mode of reconciling the conflicting opinions of contending 
states. For if, as would commonly happen, the plaintiff 



204 LECTURES ON 

should be of one state, and the defendant of another, and 
the losing party should appeal to his state and reverse the 
decision, the other party would then be aggrieved, and 
would in turn appeal to his state for redress. Thus " with 
two authorities up — neither supreme," the direst mischiefs 
would result, unless adequate remedies had been provided 
by the constitution. This was not done, because nothing 
like it was in contemplation. The measure then, of ap- 
peal, is not under the constitution, but beside it, or above it. 
It is a resort to original rights and the law of self-preser- 
vation. It is therefore revolutionary, as every such resort 
must be. I do not question the right of revolution when 
either the government through all the branches, or the 
members of the confederacy itself, shall concur in gross 
and intolerable oppression and usurpation. When that is 
the case, the " remedy is one never provided by human in- 
stitutions. It is by a resort to the ultimate right of all hu- 
man beings in extreme cases to resist oppression, and to ap- 
ply force against ruinous injustice. "(m) Such resort how- 
ever is upon the responsibility of the party asserting it; — - 
and a heavy responsibility that is, which rests upon those 
who break up the foundations of society, who reduce go- 
vernment to its elements, and expose a suffering people to 
all the horrors of that elemental war. No ! the right of 
resistance against oppression is the most holy of rights ; 
but nothing is more mischievous than to make every petty 
grievance an occasion for its exercise ! 

It must further be remarked, that the great object for 
which this right of appeal is asserted, is to protect the re- 
spective members of the confederacy from the operation of 
unconstitutional laws, or unconstitutional adjudications. 
But in these questions, one state is not alone interested. 
All are interested ; and one may be as willing to enforce, 
as another to arrest a statute or decision. If one has a 
right to decide, others have the same right ; and thus we 
have twenty-six courts of appeal, each of which is to have 
the final right, as far as its own people are concerned, to 
decide on the constitutional question. (n) Suppose twenty- 
five decide in favour of the law or decision of the supreme 

(m) 1 Story 374-5. 
(n) Review 88. 



CONSTITUTIONAL LAW. 205 

court. Shall they, and their people, be subject to its bur- 
dens and requirements, while one is exempt ? Is this the 
equality of our system ? Or is the decision of one to be 
overruled by the decision of twenty-five ? If so, provision 
ought certainly to be made for procuring, collating and 
comparing the various adjudications. Or are we to follow 
the rule before spoken of, that the judgment of the su- 
preme court is to be arrested until three fourths of the 
states confirm it? Taking this to be rule, let us see how 
it would work. 

A citizen of Pennsylvania sues a Virginian in the fede- 
ral court of this state in a case in which the constitutional 
question of the right to sue is involved. Judgment is ren- 
dered against the Virginian. He appeals to his state for 
redress. Virginia decides that the law or judgment is un- 
constitutional, and that there was no right to sue. The 
judgment then must be suspended till three fourths approve 
it. With this state of things the Pennsylvanian is dissatis- 
fied. He appeals to his state, which decides that there was 
a right to sue. He then demands an enforcement of the 
judgment until three fourths of the states pronounce it 
wrong. Thus Virginia denies that there is any right to 
sue unless three fourths of the states determine otherwise. 
On the other hand, Pennsylvania, with equal rights, insists 
that there is a right to sue until three fourths of the states 
determine otherwise. 

Both cannot be. For one or the other must be over- 
ruled by one more than one fourth. Which shall it be? 
A casuist even would be puzzled to decide. 

It is earnestly contended, indeed, that the right of the 
states to determine, for themselves, every question of con- 
stitutional law, and to decide whether the compact is bro- 
ken, is inseparable from its sovereignty. This is, indeed, 
most true, where no umpire is appointed to decide the 
question. But where parties standing in antagonist rela- 
tions appoint an umpire, they cannot question or renounce 
his decision. Bona fides demands their compliance with 
it. Now, as will be presently shewn, the judiciary have 
been appointed by the states to decide all questions arising 
under the constitution. They do therefore constitute the 
umpire between the states and the United States, and be- 
tween the several states of the confederacy and their citi- 
18 



206 LECTURES ON 

zens, and both parties are conclusively bound by its deci- 
sions. Nor can there be danger in such an umpirage. Se- 
lected for their virtues and ability, and lifted above all fear 
or favour or affection, they merit confidence from all ; but 
as they are citizens of the states and attached peculiarly 
to them, the states have surely little reason for distrust: 
And if we could suspect them of any leaning which does 
not spring from honest conviction, we should surely appre^ 
hend a leaning to the states. 

Let us see then in whom are the judicial powers of the 
government vested by the constitution. The third article, 
section 1st, declares that they " shall be vested in one su- 
preme court, and in such inferior courts as congress may 
from time to time ordain and establish." And in the 2d 
section it provides, that the judicial power shall extend to 
ALL cases arising under the constitution,^' so that the de- 
cision of ALL cases arising under the constitution, is vested 
in the supreme court, and such inferior courts, &c. But 
if the constitution of the United States vests the power to 
decide a question arising under the constitution in the su- 
preme court, there can be no constitutional appeal from its 
decision ; for if there could, it would no longer be supreme. 
For the power to decide (which is the judicial power) is a 
power to determine a question or dispute ;(o) and the vest- 
ing that power in one supreme court, is a negative of the 
power of any other body to controvert its determination. 
For if the judgment of the supreme court may be contro- 
verted by another court, then it is clear that the court is 
not supreme, and that its judgment has not determined [or 
put an end to] the question, although, the power to deter- 
mine it is given by the constitution. The judgments then 
of the supreme court, " in cases arising under the consti- 
tution," must be final and conclusive. This, indeed, seems 
to be admitted as to all other tribunals ;(p) and I think I 
have shewn there can be no other appeal, except that which 
consists in a rejection of the " cancelled obligations of the 
violated compact, and a resort to original rights, and the 
law of self-preservation." 

What then are " cases arising under the constitution 1" 
Are questions of constitutional law, and questions of the 

(o) Walker's Dictionary, 
(p) Review p. 80, para. 2. 



CONSTITUTIONAL LA.\V. 207 

jurisdiction of the supreme court such cases? If so, they 
are comprehended by the judicial power which is vested 
in the supreme court, and its decisions thereupon are final 
and conclusive. 

Now, it would not seem to admit of doubt that all ques- 
tions of constitutional law, whether respecting the true 
meaning and intention of the instrument, or the extent and 
character of the several powers granted to the federal go- 
vernment, or any department thereof, are questions arising 
under the constitution ; and all cases between proper parties, 
which depend upon such questions, are, therefore, cases 
arising under the constitution. To all such cases it is de- 
clared that the jurisdiction shall extend. When, there- 
fore, the court is in possession of such a case, the deter- 
mination of which depends upon a constitutional question, 
it must of necessity determine that question, if it deter- 
mines the case; and that determination, we have endea- 
voured to shew, must be final and conclusive. This is 
emphatically the case as to the subject of jurisdiction, (g) 
and, therefore, the judgment of the supreme court, on a 
question of jurisdiction, however erroneous it may seem, 
is final and conclusive, and cannot be controverted by any 
other court or organ of the government. The supreme 
court itself, indeed, may, in a subsequent case, reconsider 
the question and overrule the precedent ; but until they do 
so, it must be held to be final and conclusive, and can in 
no wise be lawfully resisted. The states may, indeed, 
amend the constitution, but until amended there seems to 
be no mode of getting rid of an obnoxious precedent, but 
by the act of the court itself in overruling it. 

(q) " It is admitted," says the reviewer very truly, " that every 
court must necessarily determine every question of jurisdiction be- 
fore it, and, so far, it must of course be the judge of its own pow- 
ers. If it be a court of the last resort, its decision is necessarily 
final, so far as those authorities are concerned which belong to the 
same system of government with itself." 



LECTURES ON CONSTITUTIONAL LAW. 209 



LECTURE VIII. 

There are cases however, arising under the constitution, 
which never can be brought before the judiciary for its 
decision. " As to these cases," says the reviewer, " each 
state must, of necessity, be its own final judge or interpre- 
ter." Very true ! but in these cases of controversy be- 
tween the states and the United States as to the extent of 
the powers of the latter, if any one state has the power of 
judging or interpreting for itself, all the other five and 
twenty have an equal power ; and if they persist(a) in 
maintaining and upholding what the single state resists, it 
must either by reason and its remonstrances bring about a 
change of opinion, or it must finally yield its objections 
and submit to the interpretation of the constitution by its 
sister states until it can procure an amendment in confor- 
mity with its own views. Until then the obnoxious mea- 
sure will be carried out, not, indeed, by action upon the 
state itself, through its several organs, but upon the indi- 
viduals composing the state, according to the true theory 
and principles of the constitution. 

It sometimes, indeed, may happen that the federal go- 
vernment will have no power to enforce the states to do 
their duty. Thus, if a state refuses to elect senators, or 
to appoint electors, there is no remedy, and thus, it is true, 
by combination among the states, the government may be 
destroyed. On the other hand, in some cases of collision 
between the states and general government, where the lat- 
ter can act on individuals, it may do so and carry out its 
laws in spite of the resistance of the states. It proceeds 
to execute the law, and if resisted, the offender is sub- 

(a) If they or a majority of congress do not, then the obvious re- 
medy is a repeal of the obnoxious law. If the majority of con- 
gress approve it, and the judiciary pronounce it valid, no state can 
have a constitutional right to resist it. Its only remedy is above 
the constitution. In other words it must be by revolution, or se- 
cession, which is revolution; and as all the states have equal right 
to judge, secession must always be upon the responsibility of the 
seceding state. 

18* 



210 LECTURES ON 

jected to the laws of the Union. It will be no justification 
to him in its forum that he acted under a conflicting state 
law. So, if the governor of a state were to issue an order 
to the militia while in the actual service of the United 
States during war, the executive of the Union could not 
act, indeed, upon the governor, but a court martial would 
act upon the individual loho should foolishly obey his or- 
ders. So as to the legislative bodies. Congress cannot 
act directly on the legislatures, however gross their viola- 
tions of the constitution. The legislature of one sovereign 
cannot act upon the legislature of another unless by ex- 
press compact ; and hence congress cannot compel the state 
legislatures to pass, or forbid them from passing any law. 
If they pass unconstitutional laws, which can come under 
judicial cognizance in the federal courts, those courts ar- 
rest their operation by action on individuals. If the law 
can in no wise be brought within the judicial sphere, the 
federal legislature acts without regarding it, though no po- 
litical dreamer has ever thought of compulsive repeal, or 
instructions to proceed according to its mandate. (6) 

With these views of my own on the interesting topics 
of nullification, and the powers of the supreme court, I 
shall present to the student the striking observations of se- 
veral distinguished statesmen and politicians. It cannot 
but have been remarked, that in these constitutional ques- 
tions, I occupy an isthmus that divides two great contend- 
ing parties in the nation. I have endeavoured to main- 
tain a middle course between dangerous extremes. On the 
one hand is nullification, and upon the other centralization ; 
the rocks of Scylla and the engulphing whirlpool of Cha- 
rybdis. In shunning both, I have followed, I am sure, the 
track of the wisest and most virtuous of our statesmen ; 
and I feel the sincerest gratification in being able to sus- 
tain myself on both points, by the authority of one who 
shared in the adoption of the constitution, and who has al- 
ways maintained its federative character, while he has re- 
sisted with the force of truth the disorganizing doctrines 
falsely deduced from it. I shall first, however, avail my- 
self of judge Story's able disquisitions, which will be found 

(b) The late apportionment bill is charged with this absurdity. I 
have not yet seen it. 



CONSTITUTIONAL LAW. 211 

to repel with great force of argument the unfounded and 
mischievous pretensions of the advocates of nullification. 
At the conclusion of them will be found Mr. Madison's 
views as presented in his letter to Everett in August 1830 : 

" § 373. The consideration of the question, whether the 
constitution has made provision for any common arbiter to 
construe its powers and obligations, would properly find a 
place in the analysis of the different clauses of that instru- 
ment. But, as it is immediately connected with the sub- 
ject before us, it seems expedient in this place to give it 
a deliberate attention. (c) 

" § 374. In order to clear the question of all minor 
points, which might embarrass us in the discussion, it is 
necessary to suggest a few preliminary remarks. The con- 

(c) The point was very strongly argued, and much considered, in 
the case of Cohens v. Virginia^ in the supreme court, in 1821, (6 
Wheat. R. 264.) The whole argument, as well as the judgment, 
deserves an attentive reading. The result, to which the argument 
against the existence of a common arbiter leads, is presented in a 
very forcible manner by Mr. chief justice Marshall, in pages 376, 
377: 

" The questions presented to the court by the two first points 
made at the bar are of great magnitude, and may be truly said vi- 
tally to affect the Union. They exclude the enquiry, whether the 
constitution and laws of the United States have been violated by 
the judgment, which the plaintiffs in error seek to review; and 
maintain, that, admitting such violation, it is not in the power of 
the government to apply a corrective. They maintain, that the 
nation does not possess a department capable of restraining peace- 
ably, and by authority of law, any attempts, which may be made 
by a part against the legitimate powers of the whole ; and that the 
government is reduced to the alternative of submitting to such at- 
tempts, or of resisting them by force. They maintain, that the 
constitution of the United States has provided no tribunal for the 
final construction of itself, or of the laws or treaties of the nation ; 
but that this power may be exercised in the last resort by the courts 
of every state in the Union. That the constitution, laws and trea- 
ties, may receive as many constructions, as there are states ; and 
that this is not a mischief, or, if a mischief, is irremediable. These 
abstract propositions are to be determined ; for he, who demands 
decision without permitting enquiry, affirms, that the decision he 
asks does not depend on enquiry. 

" If such be the constitution, it is the duty of this court to bow 
with respectful submission to its provisions. If such be not the 
constitution, it is equally the duty of this court to say so ; and to 
perform that task, which the American people have assigned to 
the judicial department." 



212 LECTURES ON 

stitution, contemplating the grant of limited powers, and 
distributing them among various functionaries, and the 
state governments, and their functionaries, being also 
clothed with limited powers, subordinate to those granted 
to the general government, whenever any question arises 
as to the exercise of any power by any of these functiona- 
ries under the state, or federal government, it is of neces- 
sity, that such functionaries must, in the first instance, de- 
cide upon the constitutionality of the exercise of such 
power. (rf) It may arise in the course of the discharge of 
the functions of any one, or of all, of the great depart- 
ments of government, the executive, the legislative, and 
the judicial. The officers of each of these departments 
are equally bound by their oaths of office to support the 
constitution of the United States, and are therefore con- 
scientiously bound to abstain from all acts, which are in- 
consistent with it. Whenever, therefore, they are required 
to act in a case, not hitherto settled by any proper autho- 
rity, these functionaries must, in the first instance decide, 
each for himself, whether, consistently with the constitu- 
tion, the act can be done. If, for instance, the president 
is required to do any act, he is not only authorized, but 
required, to decide for himself, whether, consistently with 
his constitutional duties, he can do the act.(e) So, if a 
proposition be before congress, every member of the legis- 
lative body is bound to examine, and decide for himself, 
whether the bill or resolution is within the constitutional 
reach of the legislative powers confided to congress. And 

(d) See the Federalist, No. 33. 

(e) Mr. Jefferson carries his doctrine much farther, and holds, 
that each department of government has an exclusive right, inde- 
pendent of the judiciary, to decide for itself, as to the true con- 
struction of the constitution. "My construction," says he, "is 
very different from that, you quote. It is, that each department 
of the government is truly independent of the others, and has an 
equal right to decide for itself, what is the meaning of the consti- 
tution in the laws submitted to its action, and especially when it is 
to act ultimately and without appeal." And he proceeds to give 
examples, in which he disregarded, when president, the decisions 
of the judiciary, and refers to the alien and sedition laws, and the 
case of Marbury v. Madison, (1 Cranch 137.) 4 Jefferson's Cor- 
resp. 316, 317. See also 4 Jefferson's Corresp. 27 ; Id. 75 ; Id. 372, 
374. 



CONSTITUTIONAL LAW. 213 

in many cases, the decisions of the executive and legisla- 
tive departments, thus made, become final and conclusive, 
being from their very nature and character incapable of 
revision. Thus, in measures exclusively of a political, le- 
gislative, or executive character, it is plain, that as the su- 
preme authority, as to these questions, belongs to the le- 
gislative and executive departments, they cannot be re-ex- 
amined elsevi^here. Thus, congress having the power to 
declare war, to levy taxes, to appropriate money, to regu- 
late intercourse and commerce with foreign nations, their 
mode of executing these powers can never become the sub- 
ject of re-examination in any other tribunal. So the power 
to make treaties being confided to the president and senate, 
when a treaty is properly ratified, it becomes the law of the 
land, and no other tribunal can gainsay its stipulations. 
Yet cases may readily be imagined, in which a tax may be 
laid, or a treaty made, upon motives and grounds wholly 
beside the intention of the constitution. (/") The remedy, 
however, in such cases, is solely by an appeal to the people 
at the elections ; or by the salutary power of amendment, 
provided by the constitution itself.()0') 

*' § 375. But, where the question is of a different na- 
ture, and capable of judicial enquiry and decision, there it 
admits of a very different consideration. The decision 
then made, whether in favour, or against the constitution- 
ality of the act, by the state, or by the national authority, 
by the legislature, or by the executive, being capable, in 
its own nature, of being brought to the test of the consti- 
tution, is subject to judicial revision. It is in such cases, 
as we conceive, that there is a final and common arbiter 
provided by the constitution itself, to whose decisions all 

(/) See 4 Elliot's Debates, 315 to 320. 

(g) The Federalist, No. 44. — Mr. Madison, in the Virginia Re- 
port of January 1800, has gone into a consideration of this point, 
and very properly suggested, that there may be infractions of the 
constitution not within the reach of the judicial power, or capable 
of remedial redress through the instrumentality of courts of law. 
But we cannot agree with him, that in such cases, each state may 
take the construction of the constitution into its own hands, and 
decide for itself in the last resort; much less, that in a case of ju- 
dicial cognizance, the decision is not binding on the states. See 
Report, p. 6, 7, 8, 9. 



214 LECTURES ON 

others are subordinate; and that arbiter is the supreme ju- 
dicial authority of the courts of the Union. (/«) 

" § 376. Let us examine the grounds on which this doc- 
trine is maintained. The constitution declares, (art. 6,) 
that 'This constitution, and the laws of the United States, 
which shall be made in pursuance thereof, and all treaties, 
&/C. shall be the supreme law of the land.' It also de- 
clares, (art. 3,) that 'The judicial power shall extend to 
all cases in law and equity, arising under this constitution, 
the laws of the United States, and treaties made, and 
which shall be made under their authority.' It further de- 
clares, (art. 3,) that the judicial power of the United 
States ' shall be vested in one supreme court, and in such 
inferior courts, as the congress may, from time to time, or- 
dain and establish.' Here, then, we have express, and de- 
terminate provisions upon the very subject. Nothing is 
imperfect, and nothing is left to implication. The consti- 
tution is the supreme law ; the judicial power extends to 
all cases arising in law and equity under it ; and the courts 
of the United States are, and, in the last resort, the su- 
preme court of the United States is, to be vested with this 
judicial power. No man can doubt or deny, that the power 
to construe the constitution is a judicial power. (^) The 
power to construe a treaty is clearly so, when the case ari- 
ses in judgment in a controversy between individuals.(^) 

(h) Dane's App. § 44, 45, p. 52 to 59. — It affords me very sincere 
gratification to quote the following passage from the learned com- 
mentaries of Mr. chancellor Kent, than whom very few judges in 
our country are more profoundly versed in constitutional law. 
After enumerating the judicial powers in the constitution, he pro- 
ceeds to observe: "The propriety and fatness of these judicial 
powers seem to result, as a necessary consequence, from the union 
of these states in one national government, and they may be con- 
sidered as requisite to its existence. The judicial power in every 
government must be co-extensive with the power of legislation. 
Were there no power to interpret, pronounce, and execute the law, 
the government would either perish through its own imbecility, as 
was the case with the old confederation, or other powers mast be 
assumed by the legislative body to the destruction of liberty." 1 
Kent's Comm. (2d edi. p. 296,) Lect. 14, 277. 

(i) 4 Dane's Abridg. ch. 187, art. 20, § 15, p. 590; Dane's App. 
§42, p. 49, 50; §44, p. 52, 53; 1 Wilson's Lectures, 461,462, 463. 

(k) See Address of Congress, Feb. 1787; Journals of Congress, 
p. 33 ; Rawle on the Constitution, App. 2, p. 316. 



CONSTITUTIONAL LAW, 215 

The like principle must apply where the meaning of the 
constitution arises in a judicial controversy; for it is an 
appropriate function of the judiciary to construe laws.(?) 
If, then, a case under the constitution does arise, if it is 
capable of judicial examination and decision, we see, that 
the very tribunal is appointed to make the decision. The 
only point left open for controversy is, whether such deci- 
sion, when made, is conclusive and binding upon the states, 
and the people of the states. The reasons, why it should 
be so deemed, will now be submitted. 

" § 377. In the first place, the judicial power of the 
United States rightfully extending to all such cases, its 
judgment becomes ipso facto conclusive between the par- 
ties before it, in respect to the points decided, unless some 
mode be pointed out by the constitution, in which that 
judgment may be revised. No such mode is pointed out. 
Congress is vested with ample authority to provide for the 
exercise by the supreme court of appellate jurisdiction 
from the decisions of all inferior tribunals, whether state 
or national, in cases within the purview of the judicial 
power of the United States ; but no mode is provided by 
which any superior tribunal can re-examine, what the su- 
preme court has itself decided. Ours is emphatically a 
government of laws, and not of men ; and judicial deci- 
sions of the highest tribunal, by the known course of the 
common law, are considered, as establishing the true con- 
struction of the laws, which are brought into controversy 
before it. The case is not alone considered as decided 
and settled ; but the principles of the decision are held, as 
precedents and authority, to bind future cases of the same 
nature. This is the constant practice under our whole sys- 
tem of jurisprudence. Our ancestors brought it with them, 
when they first emigrated to this country ; and it is, and 
always has been considered, as the great security of our 
rights, our liberties, and our property. It is on this ac- 
count, that our law is justly deemed certain, and founded 
in permanent principles, and* not dependent upon the ca- 
price, or will of particular judges. A more alarming doc- 
trine could not be promulgated by any American court, 
than that it was at liberty to disregard all former rules and 

(Z) Bacon's Abridgment, statute H. 



216 LECTURES ON 

decisions, and to decide for itself, without reference to the 
settled course of antecedent principles. 

" § 378. This known course of proceeding, this settled 
habit of thinking, this conclusive effect of judicial adjudica- 
tions, was in the full view of the framers of the constitution. 
It was required, and enforced in every state in the Union ; 
and a departure from it would have been justly deemed an 
approach to tyranny and arbitrary power, to the exercise 
of mere discretion, and to the abandonment of all the just 
checks upon judicial authority. It would seem impossible, 
then, to presume, if the people intended to introduce a 
new rule in respect to the decisions of the supreme court, 
and to limit the nature and operations of their judgments 
in a manner wholly unknown to the common law, and to 
our existing jurisprudence, that some indication of that in- 
tention should not be apparent on the face of the constitu- 
tion. We find, (art. 4,) that the constitution has declared, 
that full faith and credit shall be given in each state to the 
judicial proceedings of every other state. But no like pro- 
vision has been made in respect to the judgments of the 
courts of the United States, because they were plainly sup- 
posed to be of paramount and absolute obligation through- 
out all the states. If the judgments of the supreme court 
upon constitutional questions are conclusive and binding 
upon the citizens at large, must they not be equally con- 
clusive upon the states 1 If the states are parties to that 
instrument, are not the people of the states also parties ? 

" § 379. It has been said, ' that however true it may be, 
that the judicial department is, in all questions submitted 
to it by the forms of the constitution, to decide in the last 
resort, this resort must necessarily be deemed the last, in 
relation to the other departments of the government, not in 
relation to the rights of the parties to the constitutional 
compact, from which the judicial, as well as the other de- 
partments hold their delegated trusts. On any other hypo- 
thesis, the delegation of judicial power would annul the 
authority delegating it ; and the concurrence of this depart- 
ment with the others in usurped powers might subvert for 
ever, and beyond the possible reach of any rightful reme- 
dy, the very constitution, which all were instituted to pre- 
serve.'(m) Now, it is certainly possible, that all the de- 

(m) Madison's Virginia Report, Jan. 1800, p. 8, 9. 



CONSTITUTIONAL LAW. 217 

partiiients of a government may conspire to subvert the 
constitution of that government, by which they are created. 
But if they should so conspire, there would still remain an 
adequate remedy to redress the evil. In the first place, 
the people, by the exercise of the elective franchise, can 
easily check and remedy any dangerous, palpable and de- 
liberate infraction of the constitution in two of the great 
departments of government ; and, in the third department, 
they can remove the judges, by impeachment, for any cor- 
rupt conspiracies. Besides these ordinary remedies, there 
is a still more extensive one, embodied in the form of the 
constitution, by the power of amending it, which is al- 
ways in the power of three fourths of the states. It is a 
supposition not to be endured for a moment, that three 
fourths of the states would conspire in any deliberate, dan- 
gerous, and palpable breach of the constitution. And if 
the judicial department alone should attempt any usurpa- 
tion, congress, in its legislative capacity, has full power 
to abrogate the injurious effects of such a decision. Prac- 
tically speaking, therefore, there can be very little danger 
of any such usurpation or deliberate breach. 

" § 380. But it is always a doubtful mode of reasoning 
to argue from the possible abuse of powers, that they do 
not exist. (n) Let us look for a moment at the conse- 
quences, which flow from the doctrine on the other side. 
There are now twenty-four states in the Union, and each 
has, in its sovereign capacity, a right to decide for itself in 
the last resort, what is the true construction of the consti- 
tution ; what are its powers ; and what are the obligations 
founded on it. We may, then, have, in the free exercise 
of that right, twenty-four honest, but different expositions 
of every power in that constitution, and of every obligation 
involved in it. What one state may deny, another may 
assert ; what one may assert at one time, it may deny at 
another time. This is not mere supposition. It has, in 
point of fact, taken place. There never has been a single 
constitutional question agitated, where different states, if 
they have expressed any opinion, have not expressed dif- 
ferent opinions; and there have been, and, from the fluc- 
tuating nature of legislative bodies, it may be supposed, 

(n) See Anderson v. Dunn, 6 Wheaton's R, 204, 232. 
19 



218 LECTURES ON 

that there will continue to be, cases, in which the same 
state will at different times hold different opinions on the 
same question. Massachusetts at one time thought the 
embargo of 1807 unconstitutional ; at another a majority, 
from the change of parties, was as decidedly the other 
way. Virginia, in 1810, thought that the supreme court 
was the common arbiter ; in 1829 she thought differently ;(o) 
what, then, is to become of the constitution, if its powers 
are thus perpetually to be the subject of debate and con- 
troversy ? What exposition is to be allowed to be of au- 
thority? Is the exposition of one state to be of authority 
there, and the reverse to be of authority in a neighbouring 
state, entertaining an opposite exposition? Then, there 
would be at no time in the United States the same consti- 
tution in operation over the whole people. Is a power, 
which is doubted, or denied by a single state, to be sus- 
pended either wholly, or in that state? Then, the consti- 
tution is practically gone, as a uniform system, or indeed, 
as any system at all, at the pleasure of any state. If the 
power to nullify the constitution exists in a single state, it 
may rightfully exercise it at its pleasure. Would not this 
be a far more dangerous and mischievous power, than a 
power granted by all the states to the judiciary to construe 
the constitution ? Would not a tribunal, appointed under 
the authority of all, be more safe, than twenty-four tribu- 
nals acting at their own pleasure, and upon no common 
principles and co-operation? Suppose congress should de- 
clare war; shall one state have power to suspend it? Sup- 
pose congress should make peace ; shall one state have 
power to involve the whole country in war ? Suppose the 
president and senate should make a treaty ; shall one state 
declare it a nullity, or subject the whole country to repri- 
sals for refusing to obey it? Yet, if every state may for 
itself judge of its obligations under the constitution, it 
may disobey a particular law or treaty, because it may 
deem it an unconstitutional exercise of power, although 
every other state shall concur in a contrary opinion. Sup- 
pose congress should lay a tax upon imports burthensome 
to a particular state, or for purposes, which such state 

(o) Dane's App. § 44, 45, p. 52 to 59; § 54, p. 66j 4 Elliot's De- 
bates, 338, 339. 



CONSTITUTIONAL LAW. 219 

deems unconstitutional, and yet all the other states are in 
its favour ; is the law laying the tax to become a nullity 1 
That would be to allow one state to withdraw a power 
from the Union, which was given by the people of all the 
states. That would be to make the general government 
the servant of twenty-four masters, of different wills and 
different purposes, and yet bound to obey them a\\.{p) 

"§ 381. The argument, therefore, arising from a possi- 
bility of an abuse of power, is, to say the least of it, quite 
as strong the other way. The constitution is in quite as 
perilous a state from the power of overthrowing it lodged 
in every state in the Union, as it can be by being lodged 
in any department of the federal government. There is 
this difference, however, in the cases, that if there be fe- 
deral usurpation, it may be checked by the people of all 
the states in a constitutional way. If there be usurpation 
by a single state, it is upon the theory we are considering, 
irremediable. Other difficulties, however, attend the rea- 
soning we are considering. When it is said, that the de- 
cision of the supreme court in the last resort is obligatory, 
and final 'in relation to the authorities of the other de- 
partments of the government,' is it meant of the federal 
government only, or of the states also? If of the former 
only, then the constitution is no longer the supreme law of 
the land, although all the state functionaries are bound by 
an oath to support it. If of the latter also, then it is obli- 
gatory upon the state legislatures, executives and judicia- 
ries. It binds them ; and yet it does not bind the people 
of the states, or the states in their sovereign capacity. The 
states may maintain one construction of it, and the func- 
tionaries of the state are bound by another. If, on the 
other hand, the state functionaries are to follow the construc- 
tion of the state, in opposition to the construction of the su- 
preme court, then the constitution, as actually administered 
by the different functionaries, is different; and the duties 
required of them may be opposite, and in collision with 
each other. If such a state of things is the just result of 
the reasoning, may it not justly be suspected, that the rea- 
soning itself is unsound ? 

(p) Webster's Speeches, 420 ; 4 Elliot's Debates, 339. 



220 LECTURES ON 

" § 382. Again ; it is a part of this argument, that the 
judicial interpretation is not binding 'in relation to the 
rights of the parties to the constitutional compact.' — ' On 
any other hypothesis the delegation of judicial power 
would annul the authority delegating it.' Who then are 
the parties to this contract? Who did delegate the judi- 
cial power ? Let the instrument answer for itself The 
people of the United States are the parties to the constitu- 
tion. The people of the United States delegated the ju- 
dicial power. It was not a delegation by the people of one 
state, but by the people of all the states. Why then is not 
a judicial decision binding in each state, until all, who de- 
legated the power, in some constitutional manner concur 
in annulling or overruling the decision? Where shall we 
find the clause, which gives the power to each state to con- 
strue the constitution for all ; and thus of itself to super- 
sede in its own favour the construction of all the rest? 
Would not this be justly deemed a delegation of judi- 
cial power, which would annul the authority delegating 
it l{q) Since the whole people of the United States have 
concurred in establishing the constitution, it would seem 
most consonant with reason to presume, in the absence of 
all contrary stipulations, that they did not mean, that its 
obligatory force should depend upon the dictate or opinion 
of any single state. Even under the confederation, (as has 
been already stated,) it was unanimously resolved by con- 
gress, that ' as state legislatures are not competent to the 
making of such compacts or treaties, [with foreign states,] 
so neither are they competent in t1iat capacity authorita- 
tively to decide on, or ascertain the construction and sense 
of them.' And the reasoning, by which this opinion is 
supported, seems absolutely unanswerable. (?') If this was 
true under such an instrument, and that construction was 
avowed before the whole American people, and brought 
home to the knowledge of the state legislatures, how can 

{q) There is vast force in the reasoning of Mr. Webster on this 
subject, in his great speech on Mr. Foot's resolutions in the se- 
nate, in 1830, which well deserves the attention of every states- 
man and jurist. See 4 Elliot's Debates, 338, 339, 343, 344, and 
Webster's Speeches, p. 407, 408, 418, 419, 420; Id. 430, 431, 432. 

(7-) Journals of Congress, April 13, 1787, p. 32, &c. Rawle on 
the Constitution, App. 2, p. 316, &c. 



CONSTITUTIONAL LAW. 221 

we avoid the inference, that under the constitution, where 
an express judicial power in cases arising under the con- 
stitution was provided for, the people must have understood 
and intended, that the states should have no right to ques- 
tion, or control such judicial interpretation? 

" § 383. In the next place, as the judicial power extends 
to all cases arising under the constitution, and that consti- 
tution is declared to be the supreme law, that supremacy- 
would naturally be construed to extend, not only over the 
citizens, but over the states.(5) This, however, is not left 
to implication, for it is declared to be the supreme law of 
the land, ' any thing in the constitution or laws of any 
state to the contrary notwithstanding.' The people of any 
state cannot, then, by any alteration of their state constitu- 
tion, destroy or impair that supremacy. How, then, can 
they do it in any other less direct manner? Now, it is the 
proper function of the judicial department to interpret laws, 
and by the very terms of the constitution to interpret the 
supreme law. Its interpretation, then, becomes obligatory 
and conclusive upon all the departments of the federal go- 
vernment, and upon the whole people, so far as their rights 
and duties are derived from, or affected by that constitu- 
tion. If then all the departments of the national govern- 
ment may rightfully exercise all the powers, which the ju- 
dicial department has, by its interpretation, declared to be 
granted by the constitution ; and are prohibited from exer- 
cising those, which are thus declared not to be granted by 
it, would it not be a solecism to hold, notwithstanding, that 
such rightful exercise should not be deemed the supreme 
law of the land, and such prohibited powers should still be 
deemed granted? It would seem repugnant to the first no- 
tions of justice, that in respect to the same instrument of 
government, different powers, and duties, and obligations 
should arise, and different rules should prevail, at the same 
time among the governed, from a right of interpreting the 
same words (manifestly used in one sense only) in differ- 
ent, nay, in opposite senses. If there ever was a case, in 
which uniformity of interpretation might well be deemed 
a necessary postulate, it would seem to be that of a funda- 
mental law of a government. It might otherwise follow, 

(s) The Federalist, No. 33. 

19* 



223 LECTURES ON 

that the same individual, as a magistrate, might be bound 
by one rule, and in his private capacity by another, at the 
very same moment. 

" § 384. There would be neither wisdom nor policy in 
such a doctrine ; and it would deliver over the constitution 
to interminable doubts, founded upon the fluctuating opir 
nions and characters of those, who should, from time to 
time, be called to administer it. Such a constitution could, 
in no just sense, be deemed a law, much less a supreme or 
fundamental law. It would have none of the certainty or 
universality, which are the proper attributes of such a so- 
vereign rule. It would entail upon us all the miserable 
servitude, which has been deprecated, as the result of vague 
and uncertain jurisprudence. Misera est scrvitus, ubijus 
est vagum aut incertum. It would subject us to constant 
dissensions, and perhaps to civil broils, from the perpetu- 
ally recurring conflicts upon constitutional questions. On 
the other hand, the worst, that could happen from a wrong 
decision of the judicial department, would be, that it might 
require the interposition of congress, or, in the last resort, 
of the amendatory power of the states, to redress the grie- 
vance. 

" § 385. We find the power to construe the constitution 
expressly confided to the judicial department, without any 
limitation or qualification, as to its conclusiveness. Who, 
then, is at liberty, by general implications, not from the 
terms of the instrument, but from mere theory, and as- 
sumed reservations of sovereign right, to insert such a li- 
mitation or qualification? We find, that to produce uni- 
formity of interpretation, and to preserve the constitution, 
as a perpetual bond of union, a supreme arbiter or autho- 
rity of construing is, if not absolutely indispensable, at 
least, of the highest possible practical utility and impor- 
tance. Who, then, is at liberty to reason down the terras 
of the constitution, so as to exclude their natural force and 
operation ? 

" § 386. We find that it is the known course of the ju- 
dicial department of the several states to decide in the last 
resort upon all constitutional questions arising in judg- 
ment;* and that this has always been maintained as a 

* [So in Virginia in the case of Kemper v. Haickins, 1 Virginia 
Cases, p. 20.] 



CONSTITUTIONAL LAW. 223 

rightful exercise of authority, and conclusive upon the 
whole state. (#) As such, it has been constantly approved 
by the people, and never withdrawn from the courts by any 
amendment of their constitutions, when the people have 
been called to revise them. We find, that the people of 
the several states have constantly relied upon this last ju- 
dicial appeal, as the bulwark of their state rights and liber- 
ties ; and that it is in perfect consonance with the whole 
structure of the jurisprudence of the common law. Un- 
der such circumstances, is it not most natural to presume, 
that the same rule was intended to be applied to the con- 
stitution of the United States? And when we find, that 
the judicial department of the United States is actually en- 
trusted with a like power, is it not an irresistible presump- 
tion, that it had the same object, and was to have the same 
universally conclusive effect? Even under the confedera- 
tion, an instrument framed with infinitely more jealousy 
and deference for state rights, the judgments of the judi- 
cial department appointed to decide controversies between 
states v/as declared to be final and conclusive; and the ap- 
pellate power in other cases was held to overrule all state 
decisions and state legislation. (m) 

" § 387. If, then, reasoning from the terms of the con- 
stitution, and the known principles of our jurisprudence, 
the appropriate conclusion is, that the judicial department 
of the United States is, in the last resort, the final exposi- 
tor of the constitution, as to all questions of a judicial na- 
ture ; let us see, in the next place, how far this reasoning 
acquires confirmation from the past history of the consti- 
tution, and the practice under it. 

" § 388. That this view of the constitution was taken 
by its framers and friends, and was submitted to the peo- 
ple before its adoption, is positively certain. The Fede- 
ralist(ij) says, ' Under the national government, treaties and 
articles of treaties, as well as the law of nations, will al- 
ways be expounded in one sense, and executed in the same 

(t)2 Elliot's Debates, 248, 328, 329, 395; Grimke's speech in 
1828, p. 25, &c. ; Dane's Append. § 44, 45, p. 52 to 59; Id. § 48, 
p. 62. 

(u) Dane's App. § 52, p. 65; Penhallow v. Doane, 3 Dall. 54; 
Journals of Congress, 1779, vol. 5, p. 86 to 90 ; 4 Cranch 2. 

(») The Federalist, No. 3. 



2*24 LECTURES ON 

manner ; whereas, adjudications on the same points and 
questions in thirteen states, or three or four confederacies, 
will not always accord, or be consistent ; and that as well 
from the variety of independent courts and judges appoint- 
ed by different and independent governments, as from the 
different local laws, which may affect and influence them. 
The wisdom of the convention in committing such ques- 
tions to the jurisdiction and judgment of courts appointed 
by, and responsible only to, one national government, can- 
not be too much commended.' Again, referring to the ob- 
jection taken, that the government was national, and not a 
confederacy of sovereign states, and after stating, that the 
jurisdiction of the national government extended to certain 
enumerated objects only, and left the residue to the seve- 
ral states, it proceeds to say -.(w) ' It is true, that in con- 
troversies between the two jurisdictions (state and national) 
the tribunal, tohich is ultimately to decide, is to be estab- 
lished under the general government. But this does not 
change the principle of the case. The decision is to be 
impartially made according to the rules of the constitution, 
and all the usual and most effectual precautions are taken 
to secure this impartiality. Some such tribunal is clearly 
essential to prevent an appeal to the sword, and a dissolu- 
tion of the compact. And that it ought to be established 
under the general, rather than under the local govern- 
ments, or, to speak more properly, that it could be safely 
established under the first alone, is a position not likely to 
be combated.' (x) 

"§ 389. The subject is still more elaborately consider- 
ed in another number, (y) which treats of the judicial de- 
partment in relation to the extent of its powers. It is there 
said, that there ought always to be a constitutional method 
of giving efficacy to constitutional provisions ; that if there 
are such things as political axioms, the propriety of the ju- 
dicial department of a government being co-extensive with 
its legislature, may be ranked among the number ;(z) that 

{w) The Federalist, No 39. 

(a-) See also the Federalist, No. 33. 

ly) The Federalist, No. 80. 

{z) The same remarks will be found pressed with great force by 
Mr. chief justice Marshall, in delivering the opinion, of the court 
in Cohens v. Virginia^ (6 Wheat. ^64, 384.) 



CONSTITUTIONAL LAW. 225 

the mere necessity of uniformity in the interpretation of 
the national law decides the question; that thirteen inde- 
pendent courts of final jurisdiction over the same causes 
is a hydra of government, from which nothing but contra- 
diction and confusion can proceed ; that controversies be- 
tween the nation and its members can only be properly re- 
ferred to the national tribunal ; that the peace of the whole 
ought not to be left at the disposal of a part ; and that 
whatever practices may have a tendency to disturb the har- 
mony of the states, are proper objects of federal superin- 
tendence and control. (a) 

(a) In The Federalist, No. 78 and 82, the same course of reason- 
ing is pursued, and the final nature of the appellate jurisdiction of 
the supreme court is largely insisted on. In the convention of Con- 
necticut, Mr. Ellsworth (afterwards chief justice of the United 
States) used the following language : " This constitution defines 
the extent of the powers of the general government. If the gene- 
ral legislature should at any time overleap their limits, the judicial 
department is the constitutional check. If the United States go 
beyond their powers; if they make a law, which the constitution 
does not authorize, it is void; and the judicial power, the national 
judges, who, to secure their impartiality, are to be made indepen- 
dent, will declare it void. On the other hand, if the states go be- 
yond their limits ; if they make a law, which is a usurpation upon 
the general government, the law is void, and upright and indepen- 
dent judges will declare it. Still, however, if the United States 
and the individual states will quarrel; if they want to fight, they 
may do it, and no frame of government can possibly prevent it." 
In the debates in the South Carolina legislature, when the subject 
of calling a convention to ratify or reject the constitution was be- 
fore them,* Mr. Charles Pinckney (one of the members of the con- 
vention) avowed the doctrine in the strongest terms. " That a su- 
preme federal jurisdiction was indispensable," said he, "cannot be 
denied. It is equally true, that in order to ensure the administra- 
tion of justice, it was necessary to give all the powers, original as 
well as appellate, the constitution has enumerated. Without it we 
could not expect a due observance of treaties ; that the state judi- 
ciaries would confine themselves within their proper sphere ; or 
that a general sense of justice would pervade the Union, &c. That 
to ensure these, extensive authorities were necessary ; particularly 
so, were they in a tribunal, constituted as this is, whose duty it 
would be, not only to decide all national questions, which should 
arise within the Union ; but to control and keep the state judicia- 
ries within their proper limits, whenever they should attempt to 
interfere with the power." 

* Debates in 1788, printed by A. E. Miller, 1831, Charleston, p. 7. 



226 LECTURES ON 

" § 390. The same doctrine was constantly avowed in 
the state conventions, called to ratify the constitution. 
With some persons it formed a strong objection to the con- 
stitution ; with others it was deemed vital to its existence 
and value. (6) So, that it is indisputable, that the consti- 
tution was adopted under a full knowledge of this exposi- 
tion of its grant of power to the judicial department. (c) 

"§391. This is not all. The constitution has now 
been in full operation more than forty years ; and during 
this period the supreme court has constantly exercised this 
power of final interpretation in relation, not only to the 
constitution, and laws of the Union, but in relation to state 
acts and state constitutions and laws, so far as they affect- 
ed the constitution, and laws, and treaties of the United 
States. («Z) Their decisions upon these grave questions 
have never been repudiated, or impaired by congress.(e) 
No state has ever deliberately or forcibly resisted the exe- 

(b) It vi^ould occupy too much space to quote the passages at 
large. Take for an instance, in the Virginia debates, Mr. Madi- 
son's remarks. " It may be a misfortune, that in organizing any 
government, the exphcation of its authority should be left to any of 
its co-ordinate branches. There is no example in any country, where 
it is otherwise. There is no new policy in submitting it to the judi- 
ciary of the United States." 2 Elliot's Debates, 390. See also Id. 380, 
383, 395, 400, 404, 418. See also North Carolina Debates, 3 El- 
liot's Debates, 125, 127, 128, 130, 133, 134, 139, 141, 142, 143; 
Pennsylvania Debates, 3 Elliot's Debates, 280, 313. Mr. Luther 
Martin, in his letter to the Maryland convention, said : " By the 
third article the judicial power is vested in one supreme court, 
&c. These courts, and these only, will have a right to decide upon 
the laws of the United States, and all questions arising upon their 
construction, &c. Whether, therefore, any laws, &c. of congress, 
or acts of its president, &c. are contrary to, or warranted by the 
constitution, rests only with the judges, who are appointed by con- 
gress to determine; by tvhose determinations every state is bound." 
3 Elliot's Debates, 44, 45; Yates's Minutes, &c. See also the Fe- 
deralist, No. 78. 

(c) See Mr. Pinckney's observations, cited in Grimke's speech 
in 1828, p. 85, 87. 

{d) Dane's App. § 44, p. 53, 54, 55; Grimke's speech, 1828, p. 
34 to 42. 

(e) In the debates in the first congress organized under the con- 
stitution, the same doctrine was openly avowed, as indeed it has 
constantly been by the majority of congress at all subsequent pe- 
riods. See 1 Lloyd's Debates, 219 to 596 ; 2 Lloyd's Debates, 284 
to 327. 



CONSTITUTIONAL LAW. 227 

cution of the judgments founded upon them ; and the high- 
est state tribunals have, with scarcely a single exception, 
acquiesced in, and, in most instances, assisted in execu- 
ting them.(y) During the same period, eleven states have 
been admitted into the Union, under a full persuasion, that 
the same power would be exerted over them. Many of 
the states have, at different times within the same period, 
been called upon to consider, and examine the grounds, on 
which the doctrine has been maintained, at the solicitation 
of other states, which felt, that it operated injuriously, or 
might operate injuriously, upon their interests. A great 
majority of the states, which have been thus called upon 
in their legislative capacities to express opinions, have 
maintained the correctness of the doctrine, and the bene- 
ficial effects of the power, as a bond of union, in terms of 
the most unequivocal nature. (^) Whenever any amend- 

(/) Chief justice M'Kean, in Commonwealth v. Cobbett, (3 Dall. 
473,) seems, to have adopted a modified doctrine, and to have 
held, that the supreme court was not the common arbiter ; but if 
not, the only remedy was, not by a state deciding for itself, as in 
case of a treaty between independent governments, but by a con- 
stitutional amendment by the states. But see, on the other hand, 
the opinion of chief justice Spencer, in Andreios v. Montgomery, 
19 Johns. R. 164. 

(^g) Massachusetts, in her resolve of February 12, 1799, (p. 57,) 
in answer to the resolutions of Virginia of 1798, declared, " that 
the decision of all cases in law and equity, arising under the con- 
stitution of the United States, and the construction of all laws 
made in pursuance tfiereof, are exclusively vested by the people 
in the judicial courts of the United States ;" and " that the people 
in that solemn compact, which is declared to be the supreme law of 
the land, have not constituted the state legislatures the judges of 
the acts or measures of the federal government, but have confided 
to them the power of proposing such amendments," &c. ; and 
"that by this construction of the constitution, an amicable and 
dispassionate remedy is pointed out for any evil, which experience 
may prove to exist, and the peace and prosperity of the United 
States may be preserved without interruption." See also Dane's 
App. § 44, p. 56; Id. 80. Mr. Webster's speech in the senate, in 
1830, contains an admirable exposition of the same doctrines. 
Webster's Speeches, 410, 419, 420, 421. In June 1821, the house 
of representatives of New Hampshire passed certain resolutions, 
(172 yeas to 9 nays,) drawn up (as is understood) by one of her 
most distinguished statesmen, asserting the same doctrines. Dela- 
ware, in January 1831, and Connecticut and Massachusetts held 
the same in May 1831. 



228 LECTURES ON 

ment has been proposed to change the tribunal, and sub- 
stitute another common umpire or interpreter, it has rarely 
received the concurrence of more than two or three states, 
and has been uniformly rejected by a great majority, either 
silently, or by an express dissent. And instances have oc- 
curred, in which the legislature of the same state has, at 
different times, avowed opposite opinions, approving at one 
time, what it had denied, or at least questioned, at another. 
So, that it may be asserted with entire confidence, that for 
forty years three fourths of all the states composing the 
Union have expressly assented to, or silently approved, this 
construction of the constitution, and have resisted every 
effort to restrict, or alter it. A weight of public opinion 
among the people for such a period, uniformly thrown into 
one scale so strongly, and so decisively, in the midst of all 
the extraordinary changes of parties, the events of peace and 
of war, and the trying conflicts of public policy and state 
interests, is perhaps unexampled in the history of all other 
free governments. (/«) It affords as satisfactory a testimony 
in favour of the just and safe operation of the system, as 
can well be imagined ; and, as a commentary upon the con- 
stitution itself, it is as absolutely conclusive, as any ever 
can be, and affords the only escape from the occurrence of 

(h) Virginia and Kentucky denied the power in 1798 and 1800; 
Massachusetts, Delaware, Rhode Island, New York, Connecticut, 
New Hampshire and Vermont disapproved of the Virginia resolu- 
tions, and passed counter resolutions. (North American Review, 
October 1830, p. 500.) No other state appears to have approved 
the Virginia resolutions. (Ibid.) In IBlO Pennsylvania proposed 
the appointment of another tribunal than the supreme court to de- 
termine disputes between the general and state governments. Vir- 
ginia, on that occasion, affirmed, that the supreme court was the 
proper tribunal ; and in that opinion New Hampshire, Vermont, 
North Carolina, Maryland, Georgia, Tennessee, Kentucky and 
New Jersey concurred; and no one state approved of the amend- 
ment. (North American Review, October 1830, p. 507 to 512; 
Dane's App. {^ 55, p. 67; 6 Wheat. R. 358, note.) Recently, in 
March 1831, Pennsylvania has resolved, that the 25th section of 
the judiciary act of 1789, ch. 20, which gives the supreme court 
appellate jurisdiction from state courts on constitutional questions, 
is authorized by the constitution, and sanctioned by experience, 
and also all other laws empowering the federal judiciary to main- 
tain the supreme laws. 



CONSTITUTIONAL LAW. 229 

civil conflicts, and the delivery over of the subject to inter- 
minable disputes.(«) 

(i) Upon this subject the speech of Mr. Webster in the senate, 
in 1830, presents the whole argument in a very condensed and 
powerful form. The following passage is selected as peculiarly ap- 
propriate : " The people, then, sir, erected this government. They 
gave it a constitution, and in that constitution they have enume- 
rated the powers, which they bestow on it. They have made it a 
limited government. They have defined its authority. They have 
restrained it to the exercise of such powers, as are granted ; and 
all others, they declare, are reserved to the states or the people. 
But, sir, they have not stopped here. If they had, they would 
have accomplished but half their work. No definition can be so 
clear, as to avoid possibility of doubt ; no limitation so precise, as 
to exclude all uncertainty. Who, then, shall construe this grant 
of the people ? Who shall interpret their will, where it may be 
supposed they have left it doubtful .'' With whom do they repose this 
ultimate right of deciding on the powers of the government.' Sir, 
they have settled all this in the fullest manner. They have left it 
with the government itself, in its appropriate branches. Sir, the 
very chief end, the main design, for which the whole constitution 
was framed and adopted, was to establish a government, that should 
not be obliged to act through state agency, or depend on state opi- 
nion and state discretion. The people had had quite enough of that 
kind of government, under the confederacy. Under that system, 
the legal action — the application of law to individuals, belonged 
exclusively to the states. Congress could only recommend — their 
acts were not of binding force, till the states had adopted and sanc- 
tioned them. Are we in that condition still ? Are we yet at the 
mercy of state discretion, and state construction .' Sir, if we are, 
then vain will be our attempt to maintain the constitution, under 
which we sit. 

" But, sir, the people have wisely provided, in the constitution 
itself, a proper, suitable mode and tribunal for settling questions of 
constitutional law. There are, in the constitution, grants of powers 
to congress ; and restrictions on these powers. There are, also, 
prohibitions on the states. Some authority must, therefore, neces- 
sarily exist, having the ultimate jurisdiction to fix and ascertain 
the interpretation of these grants, restrictions and prohibitions. 
The constitution has itself pointed out, ordained and established 
that authority. How has it accomplished this great and essential 
end ? By declaring, sir, that ' the constitution and the laws of the 
United States, made in pursuance thereof, shall be the supreme laio 
of the land, any thing in the constitution or laics of any state to the 
contrary notwithstanding.' 

" This, sir, was the first great step. By this, the supremacy of 

the constitution and laws of the United States is declared. The 

people so will it. No state law is to be valid, which comes in 

conflict with the constitution, or any law of the United States 

20 



230 LECTURES ON 

" § 392. In this review of the power of the judicial de-" 
partment, upon a question of its supremacy in the inter- 
pretation of the constitution, it has not been thought ne- 
cessary to rely on the deliberate judgments of that depart- 
ment in affirmance of it. But it may be proper to add, 
that the judicial department has not only constantly exer- 
cised this right of interpretation in the last resort; but its 

passed in pursuance of it. But who shall decide this question 
of interference ? To whom lies the last appeal ? This, sir, the 
constitution itself decides, also, by declaring, ' that the judicial 
power shall extend to all cases arising under the constitution 
and laws of the United States.' These two provisions, sir, co- 
ver the whole ground. They are, in truth, the keystone of the 
arch. "With these, it is a constitution; without them it is a 
confederacy. In pursuance of these clear and express provisions, 
congress established, at its very first session, in the judicial act, a 
mode for carrying them into full eflFect, and for bringing all ques- 
tions of constitutional power to the final decision of the supreme 
court. It then, sir, became a government. It then had the means 
of self-protection ; and, but for this, it would, in all probability, 
have been now among things, which are past. Having constituted 
the government, and declared its powers, the people have further 
said, that since somebody must decide on the extent of these pow- 
ers, the government shall itself decide ; subject, always, like other 
popular governments, to its responsibility to the people. And now, 
sir, I repeat, how is it, that a state legislature acquires any power 
to interfere .'' Who, or what, gives them the right to say to the 
people, ' We, who are your agents and servants for one purpose, will 
undertake to decide, that your other agents and servants, appointed 
by you for another purpose, have transcended the authority you gave 
them !' The reply would be, I think, not impertinent — ' Who made 
you a judge over another's servants.' To their own masters they 
stand or fall.' 

" Sir, I deny this power of state legislatures altogether. It can- 
not stand the test of examination. Gentlemen may say, that in an 
extreme case, a state government might protect the people from 
intolerable oppression. Sir, in such a case, the people might pro- 
tect themselves, without the aid of the state governments. Such 
a case warrants revolution. It must make, when it comes, a law 
for itself. A nullifying act of a state legislature cannot alter the 
case, nor make resistance any more lawful. In maintaining these 
sentiments, sir, I am but asserting the rights of the people. I state 
what they have declared, and insist on their right to declare it. 
They have chosen to repose this power in the general government, 
and I think it my duty to support it, like other constitutional pow- 
ers." 

See also 1 Wilson's Law Lectures, 461, 462. — It is truly surpri- 
sing, that, Mr. vice-president Calhoun, in his letter of the 28th of 
August 1832, to governor Hamilton, (published while the present 
work was passing through the press,) should have thought, that a 



CONSTITUTIONAL LAW. 231 

whole course of reasonings and operations has proceeded 
upon the ground, that, once made, the interpretation was 
conclusive, as well upon the states, as the people. (jt) 

" § 393. But it may be asked, as it has been asked, what 
is to be the remedy, if there be any misconstruction of the 
constitution on the part of the government of the United 
States, or its functionaries, and any powers exercised by 

proposition merely offered in the convention, and referred to a 
committee for their consideration, that " the jurisdiction of the su- 
preme court shall be extended to all controversies between the 
United States and an individual state, or the United States and 
the citizens of an individual state,"" should, in connection with 
others, giving a negative on state laws, establish the conclusion, 
that the convention, which framed the constitution, was opposed 
to granting the power to the general government, in any form, to 
exercise any control whatever over a state by force, veto, or judi- 
cial process, or in any other form. This clause for conferring ju- 
risdiction on the supreme court in controversies between the Uni- 
ted States and the states, must, like the other controversies between 
states, or between individuals, referred to the judicial power, have 
been intended to apply exclusively to suits of a civil nature, respect- 
ing property, debts, contracts, or other claims by the United States 
against a state ; and not to the decision of constitutional questions 
in the abstract. At a subsequent period of the convention, the 
judicial power was expressly extended to all cases arising under 
the constitution, laics and treaties of the United States, and to all 
controversies, to which the United States should be a party, t thus 
covering the whole ground of a right to decide constitutional ques- 
tions of a judicial nature. And this, as the Federalist informs us, 
was the substitute for a negative upon state laws, and the only one, 
which was deemed safe or efficient. The Federalist, No. 80. 

(A-) Martin v. Hunter, 1 Wheat. R. 304, 334, &,c., 342 to 348; 
Cohens v. The State of Virginia, 6 Wheat. R. 2b"4, 376, 377 to 392 ; 
Id. 413 to 423; Bank of Hamilton v. Dudley, 2 Peters's R. 524; 
Ware v. Hylton, 3 Dall. 199; ] Cond. R. 99, 112. The language 
of Mr. chief justice Marshall, in delivering the opinion of the 
court in Cohens v. Virginia, (6 Wheat. 384 to 390,) presents the ar- 
gument in favour of the jurisdiction of the judicial department in 
a very forcible manner. " While weighing arguments drawn from 
the nature of government, and from the general spirit of an in- 
strument, and urged for the purpose of narrowing the construc- 
tion, which the words of that instrument seern to require, it is pro- 
per to place in the opposite scale those principles, drawn from the 
same sources, which go to sustain the words in their full ope- 
ration and natural import. One of these, which has been pressed 
with great force by the counsel for the plaintiffs in error, is, that 

* Journal of Convention, 20th August, p. 265. 
7 Journal of Convention, 27th August, p. 298. 



232 LECTURES ON 

them, not warranted by its true meaning? To this ques- 
tion a general answer may be given in the words of its early 
expositors : ' The same, as if the state legislatures should 

the judicial power of every vi^ell constituted government must be 
co-extensive with the legislative, and must be capable of deciding 
every judicial question which grows out of the constitution and 
laws. 

" If any proposition may be considered as a political axiom, this, 
we think, may be so considered. In reasoning upon it, as an ab- 
stract question, there would, probably, exist no contrariety of opi- 
nion respecting it. Every argument, proving the necessity of the 
department, proves also the propriety of giving this extent to it. 
We do not mean to say, that the jurisdiction of the courts of the 
Union should be construed to be co-extensive with the legislative, 
merely because it is fit, that it should be so ; but we mean to say, 
that this fitness furnishes an argument in construing the constitu- 
tion, which ought never to be overlooked, and which is most espe- 
cially entitled to consideration, when we are enquiring, whether 
the words of the instrument, which purport to establish this prin- 
ciple, shall be contracted for the purpose of destroying it. 

" The mischievous consequences of the construction, contended 
for on the part of Virginia, are also entitled to great consideration. 
It would prostrate, it has been said, the government and its laws 
at the feet of every state in the Union. And would not this be its 
effect .'' What power of the government could be executed by its 
own means, in any state disposed to resist its execution by a course 
of legislation ? The laws must be executed by individuals acting 
within the several states. If these individuals may be exposed to 
penalties, and if the courts of the Union cannot correct the judg- 
ments, by which these penalties may be enforced, the course of 
the government may be, at any time, arrested by the will of one 
of its members. Each member will possess a veto on the will of 
the whole. 

" The answer, which has been given to this argument, does not 
deny its truth, but insists, that confidence is reposed, and may be 
safely reposed, in the state institutions; and that, if they shall ever 
become so insane, or so wicked, as to seek the destruction of the 
government, they may accomplish their object by refusing to per- 
form the functions assigned to them. 

" We readily concur with the counsel for the defendant in the 
declaration, that the cases, which have been put, of direct legisla- 
tive resistance for the purpose of opposing the acknowledged pow- 
ers of the government, are extreme cases, and in the hope, that 
they will never occur; but we cannot help believing, that a gene- 
ral conviction of the total incapacity of the government to protect 
itself and its laws in such cases, would contribute in no inconside- 
rable degree to their occurrence. 

" Let it be admitted, that the cases, which have been put, are ex- 
treme and improbable, yet there are gradations of opposition to 
the laws, far short of those cases, which might have a baneful in- 



CONSTITUTIONAL LAW. 233 

violate their respective constitutional authorities.' In the 
first instance, if this should be by congress, ' the success 
of the usurpation will depend on the executive and judi- 

fluence on the affairs of the nation. Different states may entertain 
different opinions on the true construction of the constitutional 
powers of congress. We know, that at one time, the assumption 
of the debts, contracted by the several states during the war of 
our revolution, was deemed unconstitutional by some of them. 
We know, too, that at other times, certain taxes, imposed by con- 
gress, have been pronounced unconstitutional. Other laws, have 
been questioned partially, while they were supported by the great 
majority of the American people. We have no assurance, that we 
shall be less divided, than we have been. States may legislate in 
conformity to their opinions, and may enforce those opmions by 
penalties. It would be hazarding too much to assert, that the ju- 
dicatures of the states will be exempt from the prejudices, by which 
the legislatures and people are influenced, and will constitute per- 
fectly impartial tribunals. In many states the judges are depen- 
dent for office and for salary on the will of the legislature. The 
constitution of the United States furnishes no security against the 
universal adoption of this principle. When we observe the im- 
portance, which that constitution attaches to the independence of 
judges, we are the less inclined to suppose, that it can have in- 
tended to leave these constitutional questions to tribunals, where 
this independence may not exist, in all cases where a state shall 
prosecute an individual, who claims the protection of an act of con- 
gress. These prosecutions may take place, even without a legis- 
lative act. A person, making a seizure under an act of congress, 
may be indicted as a trespasser, if force has been employed, and 
of this a jury may judge. How extensive may be the mischief, if 
the first decisions in such cases should be final ! 

" These collisions may take place in times of no extraordinary 
commotion. But a constitution is framed for ages to come, and is 
designed to approach immortality, as nearly as human institu- 
tions can approach it. Its course cannot always be tranquil. It 
is exposed to storms and tempests, and its framers must be unwise 
statesmen indeed, if they have not provided it, as far as its nature 
will permit, with the means of self-preservation from the perils it 
may be destined to encounter. No government ought to be so de 
fective in its organization, as not to contain within itself the means 
of securing the execution of its own laws against other dangers, 
than those which occur every day. Courts of justice are the means 
most usually employed; and it is reasonable to expect, that a go- 
vernment should repose on its own courts, rather than on others. 
There is certainly nothing in the circumstances, under which our 
constitution was formed; nothing in the history of the times which 
would justify the opinion, that the confidence reposed in the states 
was so implicit as to leave in them and their tribunals the power of 
resisting or defeating, in the form of law, the legitimate measures 
of the Union. The requisitions of congress, under the confedera- 

20* 



234 LECTURES ON 

ciary departments, which are to expound, and give effect to 
the legislative acts; and, in the last resort, a remedy must 
be obtained from the people, who can, by the election of 

tion, were as constitutionally obligatory, as the laws enacted by 
the present congress. That they were habitually disregarded, is a 
fact of universal notoriety. With the knowledge of this fact, and 
under its full pressure, a convention was assembled to change the 
system. Is it so improbable, that they should confer on the judi- 
cial department the power of construing the constitution and laws 
of the Union in every case, in the last resort, and of preserving 
them from all violation from every quarter, so far as judicial deci- 
sions can preserve them, that this improbability should essentially 
affect the construction of the new system ? We are told, and we 
are truly told, that the great change, which is to give efficacy to 
the present system, is its ability to act on individuals directly, in- 
stead of acting through the instrumentality of state governments. 
But, ought not this ability, in reason and sound policy, to be ap- 
plied directly to the protection of individuals employed in the exe- 
cution of the laws, as well as to their coercion .•■ Your laws reach 
the individual without the aid of any other power; why may they 
not protect him from punishment for performing his duty in exe- 
cuting them ? 

" The counsel for Virginia endeavour to obviate the force of these 
arguments by saying, that the dangers they suggest, if not imagi- 
nary, are inevitable ; that the constitution can make no provision 
against them; and that, therefore, in construing that instrument, 
they ought to be excluded from our consideration. This state of 
things, they say, cannot arise, until there shall be a disposition so 
hostile to the present political system, as to produce a determina- 
tion to destroy it; and, when that determination shall be produced, 
its effects will not be restrained by parchment stipulations. The 
fate of the constitution will not then depend on judicial decisions. 
But, should no appeal be made to force, the states can put an end 
to the government by refusing to act. They have only not to elect 
senators, and it expires without a struggle. 

" It is very true, that, whenever hostility to the existing system 
shall become universal, it will be also irresistible. The people 
made the constitution, and the people can unmake it. It is the 
creature of their will, and lives only by their will. But this su- 
preme and irresistible power to make, or to unmake, resides only 
in the whole body of the people ; not in any sub-division of them. 
The attempt of any of tlie parts to exercise it is usurpation, and 
ought to be repelled by those, to whom the people have delegated 
their power of repelling it. 

" The acknowledged inability of the government, then, to sus- 
tain itself against the public will, and, by force or otherwise, to 
control the whole nation, is no sound argument in support of its 
constitutional inability to preserve itself against a section of the na- 
tion acting in opposition to the general will. 



CONSTITUTIONAL LAW. 235 

more faithful representatives, annul the acts of the usurpers. 
The truth is, that this ultimate redress may be more con- 
fided in against unconstitutional acts of the federal, than of 
the state legislatures, for this plain reason, that, as every 
act of the former will be an invasion of the rights of the 
latter, these will ever be ready to mark the innovation, to 
sound the alarm to the people, and to exert their local in- 
fluence in effecting a change of federal representatives. 
There being no such intermediate body between the state 
legislatures and the people, interested in watching the con- 
duct of the former, violations of the state constitution are 
more likely to remain unnoticed and unredressed. (Z) 

" (^ 394. In the next place, if the usurpation should be 
by the president, an adequate check may be generally found, 
not only in the elective franchise, but also in the control- 
ling power of congress, in its legislative or impeaching ca- 
pacity, and in an appeal to the judicial department. In the 
next place, if the usurpation should be by the judiciary, 
and arise from corrupt motives, the power of impeachment 
would remove the offenders ; and in most other cases the 
legislative and executive authorities could interpose an ef- 
ficient barrier. A declaratory or prohibitory law would, in 
many cases, be a complete remedy. We have, also, so far 

" It is true, that if all the states, or a majority of them, refuse 
to elect senators, the legislative powers of the Union will be sus- 
pended. But if any one state shall refuse to elect them, the senate 
will not, on that account, be the less capable of performing all its 
functions. The argument founded on this fact would seem rather 
to prove the subordination of the parts to the whole, than the com- 
plete independence of any one of them. The framers of the con- 
stitution were, indeed, unable to make any provisions, which should 
protect that instrument against a general combination of the states, 
or of the people, for its destruction; and, conscious of this inabili- 
ty, they have not made the attempt. But they were able to pro- 
vide against the operation of measures adopted in any one state, 
whose tendency might be to arrest the execution of the laws, and 
this it was the part of true wisdom to attempt. We think they 
have attempted it." 

See also M'CuUoch v. Maryland, (4 Wheat. 316, 405, 406.) See 
also the reasoning of Mr. chief justice Jay, in Chisholm v. Geor- 
gia, (2 Dall. 419, S. C. 2 Peters's Cond. R. 635, 670 to 675.) Os- 
born V. Bank of the United States, (9 Wheat. 738, 813, 819;) and 
Gibhons v. Ogden, (9 Wheat. 1, 210.) 

(/) The Federalist, No. 44 ; 1 Wilson's Law Lectures, 461, 462 ; 
Dane's App. § 58, p. 68. 



236 LECTURES ON 

at least as a conscientious sense of the obligations of duty, 
sanctioned by an oath of office, and an indissoluble respon- 
sibility to the people for the exercise and abuse of power, 
on the part of different departments of the government, 
can influence human minds, some additional guards against 
known and deliberate usurpations ; for both are provided 
for in the constitution itself 'The wisdom and the dis- 
cretion of congress, (it has been justly observed,) their 
identity with the people, and the influence, vi^hich their 
constituents possess at elections, are, in this, as in many 
other instances, as, for example, that of declaring war, the 
sole restraints ; on this they have relied, to secure them 
from abuse. They are the restraints, on which the people 
must often solely rely in all representative governments.'(?w) 
"§ 395. But in the next place, (and it is that, which 
would furnish a case of most difficulty and danger, though 
it may fairly be presumed to be of rare occurrence,) if the 
legislative, executive and judicial departments should all 
concur in a gross usurpation, there is still a peaceable re- 
medy provided by the constitution. It is by the power of 
amendment, which may always be applied at the will of 
three fourths of the states. If, therefore, there should be 
a corrupt co-operation of three fourths of the states for 
permanent usurpation, (a case not to be supposed, or if 
supposed, it differs not at all in principle or redress from 
the case of a majority of a state or nation having the same 
intent,) the case is certainly irremediable under any known 
forms of the constitution. The states may now by a con- 
stitutional amendment, with few limitations, change the 
whole structure and powers of the government, and thus 
legalize any present excess of power. And the general 
right of a society in other cases to change the government 
at the will of a majority of the whole people, in any man- 
ner, that may suit its pleasure, is undisputed, and seems in- 
disputable. If there be any remedy at all for the minority 
in such cases, it is a remedy never provided for by human 
institutions. It is by a resort to the ultimate right of all 

(m) Gibbons v. Ogden, 9 Wheat. R. 1, 197. — See also, on the 
same subject, the observations of Mr. justice Johnson, in deliver- 
ing the opinion of the court, in Anderson v. Dunn, 6 Wheat. R. 
204, 226. 



CONSTITUTIONAL LAW. 237 

human beings in extreme cases to resist oppression, and 
to apply force against ruinous injustice. (n) 

(n) See Webster's Speeches, p. 408, 409 ; 1 Blac^. Comm. 161, 
162. See also 1 Tucker's Black. Comm. App. 73 to 75. 

The following is the letter of Mr. Madison to Mr. Edward Eve- 
rett, dated August 1830, referred to by judge Story in his Com- 
mentaries, and published as a note to page 375, of the first volume : 

" In order to understand the true character of the constitution 
of the United States, the error, not uncommon, must be avoided, 
of viewing it through the medium, either of a consolidated go- 
vernment, or of a confederated government, whilst it is neither 
the one, nor the other ; but a mixture of both. And having, in no 
model, the similitudes and analogies applicable to other systems of 
government, it must, more than any other, be its own interpreter 
according to its text and the facts of the case. 

" From these it will be seen, that the characteristic peculiarities 
of the constitution are, 1, the mode of its formation; 2, the divi- 
sion of the supreme powers of government between the states in 
their united capacity, and the states in their individual capacities. 

"1. It was formed, not by the governments of the component 
states, as the federal government, for which it was substituted was 
formed. Nor was it formed by a majority of the people of the Uni 
ted States, as a single community, in the manner of a consolidated 
government. 

"It was formed by the states, that is, by the people in each of 
the states, acting in their highest sovereign capacity ; and formed 
consequently, by the same authority, which formed the state con- 
stitutions. 

" Being thus derived from the same source as the constitutions 
of the states, it has, within each state, the same authority, as the 
constitution of the state; and is as much a constitution, in the 
strict sense of the term, within its prescribed sphere, as the con- 
stitutions of the states are, within their respective spheres : but 
with this obvious and essential difference, that being a compact 
among the states in their highest sovereign capacity., and constituting 
the people thereof one people for certain purposes, it cannot be al- 
tered, or annulled at the will of the states individually, as the con- 
stitution of a state may be at its individual will. 

"2. And that it divides the supreme powers of government, be- 
tween the government of the United States, and the governments 
of the individual states, is stamped on the face of the instrument; 
the powers of war and of taxation, of commerce and of treaties, 
and other enumerated powers vested in the government of the 
United States, being of as high and sovereign a character, as any 
of the powers reserved to the state governments. 

" Nor is the government of the United States, created by the 
constitution, less a government in the strict sense of the term, 
within the sphere of its powers, than the governments created by 



238 LECTURES ON 

y#1;he constitutions of the states are, within their several spheres. It 
^is like them, organized into legislative, executive and judiciary de- 
partments. It operates, like them, directly on persons and things. 
And, like them, it has at command a physical force for executing 
the powers committed to it. The concurrent operation in certain 
cases is one of the features marking the peculiarity of the system. 
" Between these different constitutional governments, the one 
operating in all the states, the others operating separately in each, 
with the aggregate powers of government divided between them, 
it could not escape attention, that controversies would arise con- 
cerng the boundaries of jurisdiction; and that some provision 
ought to be made for such occurrences. A political system, that 
does not provide for a peaceable and authoritative termination of 
occurring controversies, would not be more than the shadow of a 
government; the object and end of a real government being, the 
substitution of law and order for uncertainty, confusion and vio- 
lence. 

"That to have left a final decision, in such cases, to each of the 
states, then thirteen, and already twenty-four, could not fail to 
make the constitution and laws of the United States different in 
different states,was obvious ; and not less obvious, that this diversity 
of independent decisions must altogether distract the government 
of the Union, and speedily put an end to the Union itself. A uni- 
form authority of the laws, is in itself a vital principle. Some of 
the most important laws could not be partially executed.' They 
must be executed in all the states, or they could be duly executed 
in none. An impost, or an excise, for example, if not in force in 
some states, would be defeated in others. It is well known, that 
this was among the lessons of experience, which had a primary in- 
fluence in bringing about the existing constitution. A loss of its 
general authority would moreover revive the exasperating ques- 
tions between the states holding ports for foreign commerce, and 
the adjoining states without them; to which are now added, all 
the inland states, necessarily carrying on their foreign commerce 
through other states. 

" To have made the decisions under the authority of the indivi- 
dual states, co-ordinate, in all cases, with decisions under the au- 
thority of the United States, would unavoidably produce collisions 
incompatible with the peace of society, and with that regular and 
efficient administration, which is of the essence of free govern- 
ments. Scenes could not be avoided, in which a ministerial officer 
of the United States, and the correspondent officer of an indivi- 
dual state, would have rencounters in executing conflicting de- 
crees ; the result of which would depend on the comparative force 
of the local posses attending them ; and that, a casualty depend- 
ing on the political opinions and party feelings in different states. 

" To have referred every clashing decision, under the two autho- 
rities, for a final decision, to the states as parties to the constitu- 
tion, would be attended with delays, with inconveniences, and with 
expenses, amounting to a prohibition of the expedient ; not to 
mention its tendency to impair the salutary veneration for a sys- 
tem requiring such frequent interpositions, nor the delicate ques- 



CONSTITUTIONAL LAW. 239 

tions, which might present themselves as to the form of stating 
the appeal, and as to the quorum for deciding it. 

" To have trusted to negotiation for adjusting disputes between 
the government of the United States and the state governments, 
as between independent and separate sovereignties, would have 
lost sight altogether of a constitution and government for the 
Union ; and opened a direct road from a failure of that resort, to 
the ultima ratio between nations wholly independent of, and alien 
to each other. If the idea had its origin in the process of adjust- 
ment between separate branches of the same government, the ana- 
logy entirely fails. In the case of disputes between independent 
parts of the same government, neither part being able to consum- 
mate its will, nor the government to proceed without a concur- 
rence of the parts, necessity brings about an accommodation. In 
disputes between a state government, and the government of the 
United States, the case is practically, as well as theoretically dif- 
ferent; each party possessing all the departments of an organized 
government, legislative, executive and judiciary ; and having each 
aphyscial force to support its pretensions. Although the issue of 
negotiation might sometimes avoid this extremity, how often would 
it happen among so many states, that an unaccommodating spirit 
in some would render that resource unavailing ? A contrary sup- 
position would not accord with a knowledge of human nature, or 
the evidence of our own political history. 

" The constitution, not relying on any of the preceding modifi- 
cations, for its safe and successful operation, has expressly declar- 
ed, on the one hand, 1, ' that the constitution, and the laws made 
in pursuance thereof, and all treaties made under the authority of 
the United States, shall be the supreme law of the land ; 2, that 
the judges of every state shall be bound thereby, any thing in the 
constitution and laws of any state to the contrary notwithstanding ; 
3, that the judicial power of the United States shall extend to all 
cases in law and equity arising under the constitution, the laws of 
the United States, and treaties made under their authority,' &c. 

" On the other hand, as a security of the rights and powers of 
the states, in their individual capacities, against an undue prepon- 
derance of the powers granted to the government over them in 
their united capacity, the constitution has relied on, (1,) the respon- 
sibility of the senators and representatives in the legislature of the 
United States to the legislatures and people of the states ; (2,) the 
responsibility of the president to the people of the United States; 
and (3,) the liability of the executive and judicial functionaries of 
the United States to impeachment by the representatives of the 
people of the states, in one branch of the legislature of the United 
States, and trial by the representatives of the states, in the other 
branch : the state functionaries, legislative, executive and judicial, 
being, at the same time, in their appointment and responsibilty, 
altogether independent of the agency or authority of the United 
States. 

" How far this structure of the government of the United States 
is adequate and safe for its objects, time alone can absolutely de- 
termine. Experience seems to have shewn, that whatever may 



240 LECTURES ON 

grow out of future stages of our national career, there is, as yet, a 
sufficient control, in the popular will, over the executive and legis- 
lative departments of the government. When the alien and sedi- 
tion laws were passed, in contravention to the opinions and feelings 
of the community, the first elections, that ensued, put an end to 
them. And whatever may have been the character of other acts, 
in the judgment of many of us, it is but true, that they have ge- 
nerally accorded with the views of a majority of the states and of 
the people. At the present day it seems well understood, that the 
laws which have created most dissatisfaction, have had a like sanc- 
tion without doors : and that, whether continued, varied, or repeal- 
ed, a like proof will be given of the sympathy and responsibility of 
the representative body to the constituent body. Indeed, the great 
complaint now is, against the results of this sympathy and respon- 
sibility in the legislative policy of the nation. 

" With respect to the judicial power of the United States, and 
the authority of the supreme court in relation to the boundary of 
jurisdiction between the federal and the state governments, I may 
be permitted to refer to the thirty-ninth number of the Federalist* 
for the light, in which the subject was regarded by its writer at 
the period, when the constitution was depending; and it is be- 
lieved that the same was the prevailing view then taken of it; that 
the same view has continued to prevail; and that it does so at this 
time, notwithstanding the eminent exceptions to it. 

" But it is perfectly consistent with the concession of this power 
to the supreme court, in cases falling within the course of its func- 
tions, to maintain, Jiat the power has not always been rightly 
exercised. To say no bing of the period, happily a short one, when 
judges in their se Ls did not abstain from intemperate and party 
harangues, equall; at variance with their duty and their dignity; 
there have been occasional decisions from the bench, which have 
incurred serious and extensive disapprobation. Still it would seem, 
that, with but few exceptions, the course of the judiciary has been 
hitherto sustained oj the prominent sense of the nation. 

"Those who havd denied, or doubted the supremacy of the ju- 
dicial power of the United States, and denounce at the same time 
a nullifying power in a state, seem not to have sufficiently advert- 
ed to the utter inefficiency of a supremacy in a law of the land, 
without a supremacy in the exposition and execution of the law : 
nor to the destruction of all equipoise between the federal govern- 
ment and the state governments, if, whilst the functionaries of the 
federal government are directly or indirectly elected by, and re- 
sponsible to the states, and the functionaries of the states are in 
their appointment and responsibility wholly independent of the- 
United States, no constitutional control of any sort belonged to 
the United States over the states. Under such an organization, it 
is evident, that it would be in the power of the states, individually, 

[* " It is true, that in controversies relating to the boundary between the two 
jurisdictions, the tribunal which is ultimately to decide is to be established under the 
general government. Some such tribunal is clearly essential to prevent an appeal 
to the sword and a dissolution of the compact, and that it ought to be establish- 
ed under the general rather than under the local governments." Fed. No. 39.] 



CONSTITUTIONAL LAW. 241 

to pass unauthorized laws, and to carry them into complete effect, 
any thing in the constitution and laws of the United States to the 
contrary notwithstanding. This would be a nullifying power in 
its plenary character ; and whether it had its final effect, through 
the legislative, executive or judiciary organ of the state, would be 
equally fatal to the constituted relation between the two govern- 
ments. 

" Should the provisions of the constitution as here reviewed, be 
found not to secure the government and rights of the states, against 
usurpations and abuses on the part of the United States, the final 
resort within the purview of the constitution, lies in an amend- 
ment of the constitution, according to a process applicable by the 
states. 

" And in the event of a failure of every constitutional resort, 
and an accumulation of usurpations and abuses, rendering passive 
obedience and non-resistance a greater evil, than resistance and re- 
volution, there can remain but one resort, the last of all ; an ap- 
peal from the cancelled obligations of the constitutional compact, 
to original rights and the law of self-preservation. This is the ulti- 
ma ratio under all governments, whether consolidated, confedera- 
ted, or a compound of both; and it cannot be doubted, that a sin- 
gle member of the Union, in the extremity supposed, but in that 
only, would have a right, as an extra and ultra constitutional right, 
to make the appeal. 

" This brings us to the expedient lately advanced, which claims 
for a single state a right to appeal against an exercise of power by 
the government of the United States, decided by the state to be 
unconstitutional, to the parties to the constitutional compact; the 
decision of the state to have the effect of nullifying the act of the 
government of the United States, unless the decision of the state 
be reversed by three fourths of the parties. 

" The distinguished names and Ijigh authorities, which appear 
to have asserted, and given a practical scope to this doctrine, en- 
title it to a respect,which it might be difficult otherwise to feel for it. 

" If the doctrine were to be understood as requiring the three 
fourths of the states to sustain, instead of that proportion to re- 
verse the decision of the appealing state, the decision to be with- 
out effect during the appeal, it would be sufficient to remark, that 
this extra-constitutional course might well give way to that mark- 
ed out by the constitution, which authorizes two thirds of the states 
to institute, and three fourths to effectuate an amendment of the 
constitution, establishing a permanent rule of the highest authori- 
ty, in place of an irregular precedent of construction only. 

" But it is understood, that the nullifying doctrine imports, 
that the decision of the state is to be presumed valid, and that it 
overrules the law of the United States, unless overruled by three 
fourths of the states. 

" Can more be necessary to demonstrate the inadmissibility of 
such a doctrine, than, that it puts it in the power of the smallest 
fraction over one fourth of the United States, that is, of seven 
states out of twenty-four, to give the law, and even the constitu- 

31 



242 LECTURES ON CONSTITUTIONAL LAW. 

tion to seventeen states, each of the seventeen having, as parties 
to the constitution, an equal right with each of the seven, to ex. 
pound it, and to insist on the exposition ? That the seven might, in 
particular instances be right, and the seventeen wrong, is more 
than possible. But to establish a positive and permanent rule giv- 
ing such a power, to such a minority, over such a majority, would 
overturn the first principle of free government, and in practice ne- 
cessarily overturn the government itself. 

" It is to be recollected, that the constitution was proposed to 
the people of the states as a whole, and unanimously adopted by 
the states as a whole, it being a part of the constitution, that not 
less than three fourths of the states should be competent to make 
any alteration in what had been unanimously agreed to. So great 
is the caution on this point, that in two cases where peculiar in- 
terests were at stake, a proportion even of three fourths is distrust- 
ed, and unanimity required to make an alteration. 

" When the constitution was adopted as a whole, it is certain, 
that there were many parts, which, if separately proposed, would 
have been promptly rejected. It is far from impossible, that every 
part of a constitution might be rejected by a majority, and yet 
taken together as a whole, be unanimously accepted. Free consti- 
tutions will rarely, if ever, be formed, without reciprocal conces- 
sions ; without articles conditioned on, and balancing each other. 
Is there a constitution of a single state out of the twenty-four, 
that would bear the experiment of having its component parts sub- 
mitted to the people, and separately decided on r 

" What the fate of the constitution of the United States would 
be, if a small proportion of the states could expunge parts of it 
particularly valued by a large majority, can have but one answer. 

" The difficulty is not removed by limiting the doctrine to cases 
of construction. How many cases of that sort, involving cardinal 
provisions of the constitution, have occurred .'' How many now 
exist ? How many may hereafter spring up ? How many might be 
ingeniously created, if entitled to the privilege of a decision in the 
mode proposed. 

" Is it certain, that the principle of that mode would not reach 
further than is contemplated? If a single state can, of right, re- 
quire three fourths of its co-states to overrule its exposition of the 
constitution, because that proportion is authorized to amend it, 
would the plea be less plausible, that, as the constitution was una- 
nimously established, it ought to be unanimously expounded ? 

" The reply to all such suggestions, seems to be unavoidable and 
irresistible; that the constitution is a compact; that its text is to 
be expounded, according to the provisions for expounding it — 
making a part of the compact ; and that none of the parties can 
rightfully renounce the expounding provision more than any other 
part. When such a right accrues, as may accrue, it must grow 
out of abuses of the compact releasing the suiFerers from their 
fealty to it." 



ERRATA. 

Page 87, 4 lines from bottom, for " then," read " their." 
132, in the note, for " legatur," read " ligatur." 
157, line 16, for "majistatis," read " majestatis." 
200, in the latin quotation, for " tenajTtm," read " tenacem." 

200, 4 lines lower, for " impossible," read " impassible." 

201, line 9th, for "restoration," read " reiteration. "^ 

















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